Richard Karp v. Arlington, Town of - Clerk's Office (SPR 20230004)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 18, 2023 SPR23/0004 James Feeney Records Access Officer Town of Arlington 730 Massachusetts Avenue Arlington, MA 02476 Dear Mr. Feeney: I have received the petition of Richard Karp appealing the response of the Town of Arlington (Town) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 7, 2022, Mr. Karp, in four separate requests, requested the following records: [1] Any and all records, communications (including recordings), emails, direct mail, notes, logs, reports or other communications regarding [an identified individual’s] (Arlington PD) appearance, communication with and interaction with [an identified individual] at Brackett [S]chool (November 2022). Please include any specific orders or instructions given allowing [an identified individual] to exclude [an identified individual] from the Brackett [S]chool property. [2] Any and all items, mailed, emailed, noted or recorded to or from [an identified individual] to or from any employee/staff/teacher/counselor/principal/ superintendent/police department in the Town of Arlington. [3] Any and all items, mailed, emailed or shared with citizens and/or parents by the school district/superintendent’s office/principal/school/any teacher/staff or employee of either the Town of Arlington, Town of Arlington School Department or Brackett School in Arlington, MA beginning April 1st 2021 until the current date. [4] Any and all communications sent out physically or electronically to any and/or all parents regarding any or all information to do with anything related to, but not limited to, Brackett School in Arlington, School Attendance, School Open One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

James Feeney SPR23/0004 Page 2 January 18, 2023 Houses, School Teacher Introductions, School Schedules, School Calendars, School Syllabuses, anything to do with school, schooling, after school programs or events or anything else in any way related to any or all students at Brackett School beginning in May of 2021. Previous Appeals These requests were the subjects of previous appeals. See SPR22/2776; SPR22/2777; SPR22/2778; SPR22/2779 Determination of the Supervisor of Records (December 15, 2022). In my December 15th determination, I ordered the Town to provide Mr. Karp with a response to his requests. On December 22, 2022, the Town provided a response. Unsatisfied with the Town’s response, Mr. Karp petitioned this office and this appeal, SPR23/0004, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Status of the requestor; reason for the request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Karp’s purpose in making the request has no bearing on the public status of any existing responsive records.

James Feeney SPR23/0004 Page 3 January 18, 2023 The Town’s December 22nd Response In its December 22, 2022 response, the Town, with respect to Request # 1 states, “[p]lease see the enclosed responsive records, which include a 1 page PDF file containing the entry in the Arlington Police Department’s Computer Aided Dispatch System. This is the only record responsive to this request.” With respect to Request # 2, the Town states: Insofar as this request seeks direct correspondence with [an identified individual] regarding a specific student enrolled in Arlington Public Schools, please note these records are categorized as Student Records and are not subject to disclosure under G.L. c. 66 § 10. Access to student records is governed by G.L. c. 71, § 34D and the regulations enumerated in 603 CMR 23.00. With respect to general correspondence not pertaining to a specific student, these records are also covered in Request No. 4. Please see below. With respect to Request # 3, the Town states: This request is overly broad as written (i.e. “shared with citizens;” “school district/superintendent’s office/principal/school/any teacher/staff or employee…”). Further, no subject matter is defined, and the time period encompasses 585 days. With regards to email communications specifically, the stated search criteria would in essence include all outbound communications from anyone with a Town or School email domain for the subject period; the results of such a search are likely to total in excess of a million messages that cannot be screened for recipient citizenship or parental status as requested. If you wish to further refine or redefine the search parameters, please do not hesitate to contact the undersigned directly to discuss further. With respect to Request # 4, the Town states: Insofar as this request seeks correspondence regarding any specifically named student enrolled in Arlington Public Schools, please note these records are categorized as Student Records and are not subject to disclosure under G.L. c. 66 § 10. Access to student records is governed by G.L. c. 71, § 34D and the regulations enumerated in 603 CMR 23.00. Further, the School Department has compiled archived messages sen[t] to the School Community. Please see the enclosed records, which include a PDF file containing 7 pages. For further reference, please also note the following locations on the School or District websites where information is routinely and proactively published for the entire school community. . .

James Feeney SPR23/0004 Page 4 January 18, 2023 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 71, § 34D G. L. c. 71, § 34D provides: The board of education shall adopt regulations relative to the maintenance, retention, duplication, storage and periodic destruction of student records by the public elementary and secondary schools of the commonwealth. Such rules and regulations shall provide that a parent or guardian of any pupil shall be allowed to inspect academic, scholastic, or any other records concerning such pupil which are kept or are required to be kept. G. L. c. 71, § 34D. Pursuant to the Access to Student Records Regulations (Regulations), “student records:” …shall consist of the Transcript and the Temporary Record, including all information--recording and computer tapes, microfilm, microfiche, or any other materials--regardless of physical form or characteristics concerning a student that is organized on the basis of the student’s name or in a way that such student may

James Feeney SPR23/0004 Page 5 January 18, 2023 be individually identified, and that is kept by the public schools of the Commonwealth. The term as used in 603 CMR 23.00 shall mean all such information and materials regardless of where they are located, except for the information and materials specifically exempted by 603 CMR 23.04. 603 C.M.R. 23.02. Transcript shall contain administrative records that constitute the minimum data necessary to reflect the student’s educational progress and to operate the educational system. These data shall be limited to the name, address, and phone number of the student; his/her birth date; name, address, and phone number of the parent or guardian; course titles, grades (or the equivalent when grades are not applicable), course credit, highest grade level completed, and the year completed, and highest performance level achieved on all MCAS tests required for the competency determination. 603 C.M.R. 23.02. Temporary Record shall consist of all the information in the student record which is not contained in the transcript. This information clearly shall be of importance to the educational process. Such information may include standardized test results, class rank (when applicable), extracurricular activities, and evaluations by teachers, counselors, and other school staff. 603 C.M.R. 23.02. Further, under the Regulations a school: may release the following directory information: a student’s name, address, telephone listing, date and place of birth, major field of study, dates of attendance, weight and height of members of athletic teams, class, participation in officially recognized activities and sports, degrees, honors and awards, and post-high school plans without the consent of the eligible student or parent; provided that the school gives public notice of the types of information it may release under 603 CMR 23.07 and allows eligible students and parents a reasonable time after such notice to request that this information not be released without the prior consent of the eligible student or parent. Such notice may be included in the routine information letter required under 603 CMR 23.10. 603 C.M.R. 23.07(4)(a). Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co.

James Feeney SPR23/0004 Page 6 January 18, 2023 v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town did not meet its burden of demonstrating how the responsive records in Requests # 2 and 4, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). For example, it is not clear how the records responsive to Requests # 2 and 4 fall under the definition of a “student record.” Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Town must clarify this. Further, I find the Town must identify the records in its possession that are responsive to the request. To deny access to a record or portion of a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). The Town must clarify this matter. In his appeal petition, regarding Request #1, Mr. Karp states the following: Any calls to the police station are recorded as are any emails. These are public records I believe the Town of Arlington is in possession of and refusing to provide….Please review the existence of any communications the Town of Arlington Police Department absolutely has in order for [an identified individual] to have been directed to the Brackett [S]chool in Arlington in any way. In light of the above, it is unclear if the Town possesses additional records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that additional records exist, I find the Town must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). In regard to Request # 3, Mr. Karp states: The Town of Arlington’s determination is based on the misbelief that I am requesting every email sent out versus the actual emails themselves. The Town of Arlington [m]ay have sent out Millions of Emails to all of the residents but they did not send out more than several dozen to any one citizen….I am looking for all the communications the Town of Arlington had over the last 21 months from any of the entities listed (School district, superintendent’s office, principal, school, any teacher/staff of either the Town of Arlington, Town of Arlington School Department or Brackett School) with [its] citizens…. The request is very specific in all communications that occurred from the above listed entities in the last 21 months.

James Feeney SPR23/0004 Page 7 January 18, 2023 I encourage the parties to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the scope of the request. G. L. c. 66, § l0(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Mr. Karp with a response to the requests, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Richard Karp