Kevin Wood v. Georgetown, Town of - Public Schools (SPR 20230141)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 7, 2023 SPR23/0141 Carol C. Jacobs Superintendent of Schools Georgetown School Department 51 North Street Georgetown, MA 01833 Dear Superintendent Jacobs: I have received the petition of Kevin Wood appealing the response of the Georgetown School Department (Department) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On November 1, 2022, Mr. Wood requested the following: [1] Handwritten notes of all committee members created or reviewed during the October 27, 2022 school committee meeting. [2] Electronically stored information [ESI] of all committee members created or received during the October 27, 2022 school committee meeting. Previous appeal This request was the subject of a previous appeal. See SPR22/2875 Determination of the Supervisor of Records (December 30, 2022). In my December 30th determination, I directed the Department to clarify if additional records exist. The Department provided a response on January 19, 2023. Unsatisfied with the Department’s response, Mr. Wood petitioned this office and this appeal, SPR23/0141, 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). 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 Carol C. Jacobs SPR23/0141 Page 2 February 7, 2023 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 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). The Department’s January 19th response In its January 19, 2023 response, the Department stated that it had no additional records responsive to the request. Current appeal In his appeal, Mr. Wood stated that “[t]he Georgetown school district RAO response to your determination is not a clarification. The response is a reiteration of previously provided information.” No Duty to Create Records Under the Public Records Law, there is no obligation to create a record in response to a public records request. See G. L. c. 66, § 6A(d), 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only 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 an email dated February 6, 2023, a representative of the Department informed a staff attorney of the Public Records Division that the Department had no additional records responsive to the request. Conclusion Where the Department has confirmed that it does not possess additional records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Wood is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66 § 10(A)(c).

Superintendent Carol C. Jacobs SPR23/0141 Page 3 February 7, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Kevin Wood