Sarah Joor v. Newburyport, City of - Public Schools (SPR 20230025)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 23, 2022 SPR23/0025 Philip A. Littlehale Records Access Officer Newburyport Public Schools 70 Low Street Newburyport, MA 01950 Dear Mr. Littlehale: I have received the petition of Sarah Joor appealing the response of the Newburyport Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 5, 2022, Ms. Joor requested numerous records regarding a named student at the School. Prior Appeal The requested records were the subject of a prior appeal. See SPR22/2743 Determination of the Supervisor of Records (December 14, 2022). In my December 14th determination, I ordered the School to clarify if it possessed additional records responsive to the request. On January 5, 2023, the School provided a further response. Unsatisfied with the School’s response, Ms. Joor petitioned this office and this appeal, SPR23/0025, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific 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

Philip A. Littlehale SPR23/0025 Page 2 January 23, 2022 exemption or exemptions upon which the withholding is based…”); 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). 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. The School’s January 5th response In its January 5, 2023 response, the School provided responsive records. Current appeal In her current appeal, Ms. Joor claims that the School did not provide all responsive records to her request. In a telephone call between a Public Records Division staff member and a representative of the School, the School confirmed that all responsive records have been provided. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Where the School has confirmed that it has no additional responsive records in its possession, I find that Ms. Joor’s appeal regarding the October 5th request is resolved. Conclusion Accordingly, where the School does not possess any additional records responsive to Ms. Joor’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Joor is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b).

Philip A. Littlehale SPR23/0025 Page 3 January 23, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Sarah Joor Catherine L. Lyons, Esq.