Kathleen LeClair v. Old Rochester Regional School District (SPR 20230134)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 2, 2023 SPR23/0134 Michael S. Nelson, M.Ed. Superintendent of Schools Old Rochester Regional School District 135 Marion Road Mattapoisett, MA 02739 Dear Superintendent Nelson: I have received the petition of Kathleen LeClair appealing the response of the Old Rochester Regional School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 14, 2022, Ms. LeClair requested copies of: [1] Minutes of the Equity/Anti-Racism sub-committee from inception to date; and [2] Minutes of the Policy sub-committee meeting from August 2020 to date. On December 23, 2022, the District responded to Ms. LeClair: [t]his email is in regard to your public records request, emailed the evening of December 13 and received the next morning on December 14. The District is in the process of compiling records responsive to your request and intends to provide them to you at no fee. However, due to the other obligations of school personnel coinciding with end of the first semester, the unavailability of many staff during the holidays, and the high volume of records requests [the District] [has] been receiving, we may require additional time pursuant to M.G.L. c. 66, § 10(b) (vi), up to the 25 business days from its receipt of your request, to produce the requested information. Considering school closures over the winter break, we expect the response will be provided on or before January 23, but we will continue diligently working on this request and provide the records to you as soon as they are ready. On January 23, 2023, after not receiving the requested meeting minutes, Ms. LeClair petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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

Superintendent Michael S. Nelson SPR23/0134 Page 2 February 2, 2023 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) (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 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). Subsequent to the opening of this appeal, on January 27, 2023, the District provided a response to Ms. LeClair and this office. The January 27th response provided a web-link to access the requested meeting minutes. In addition, the District included a response letter dated January 23, 2023. In the January 23rd letter, the District states, “[i]ncluded with this letter are copies of the minutes requested in [N]umbers 1 and 2.” After receipt of the District’s January 27th response and production of the requested meeting minutes, Ms. LeClair sent a January 29, 2023 email to the District asserting: I’ve reviewed what you sent and the [m]inutes of the meeting are not included. The only [m]inutes I see are from October 2020 and I don’t consider those complete records as they don’t provide any information with regards to what was discussed, by whom and what was recommended to go to school committee for approval. I would like to be provided with a full set of complete [m]inutes, as required by [the G.L.] governing [m]eeting [m]inutes and [t]he [p]ublic’s [r]ight to [k]now. I would like to review what transpired in these meeting, who spoke and presented and what recommendations came out of this subcommittee to be approved by the school committee. In light of the above, I find the District should clarify whether it 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). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The District must clarify this matter.

Superintendent Michael S. Nelson SPR23/0134 Page 3 February 2, 2023 Conclusion Accordingly, the District is ordered to provide Ms. LeClair with a response to her request 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 the response to this office at pre@sec.state.ma.us. Ms. LeClair may appeal the substantive nature of any further response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kathleen LeClair