Michaela Michaud v. Billerica, Town of - Public Schools (SPR 20230255)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 24, 2023 SPR23/0255 Tim Piwowar Superintendent Billerica Public Schools 365 Boston Road Billerica, MA 01821 Dear Superintendent Piwowar: I have received the petition of Michaela Michaud appealing the response of the Billerica 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 19, 2022, Ms. Michaud requested, “…all the buds contracts that are in effect right now[.]” On October 27, 2022, the School responded, indicating that it did not possess records responsive to the request. On that same day, Ms. Michaud clarified that she was requesting “Bus contracts”. The School responded on November 4, 2022. Unsatisfied with the response, Ms. Michaud petitioned this office and this appeal, SPR23/0255, 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. 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 Tim Piwowar SPR23/0255 Page 2 February 24, 2023 The School’s November 4th Response In it November 4, 2022 response, the School opined, “[w]e use many outside contractors to provide transportation services to our students. The 3 largest are Eastern Bus for regular day transportation which is a 3 year contract expiring at the end of next school year. Christianson Bus company provides in-district special education transportation with a contract that expires at the end of this school year and will be going out to bid this spring. Trombly Motor Coach (NRT) provides special education transportation and is on a one year contract extension expiring at the end of this school year with the possibility of going out to bid in the spring ... Please let me know which contracts you are requesting and I will get the documents to you as soon as possible.” On January 7, 2023, Ms. Michaud provided a response stating that she is seeking “all of contracts for the companies you listed . . .” Based on the School’s response, it is unclear if the School possesses records responsive to the request, and if so, when it intends to provide the responsive records. 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). 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). The School must clarify this matter. As a result, I find that the School did not satisfy its burden in responding to this records request. Conclusion Accordingly, the School is ordered to provide Ms. Michaud with a response to the request in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Michaela Michaud