Alicia Lankowski v. Billerica, Town of - Public Schools (SPR 20230269)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 27, 2023 SPR23/0269 Tim Piwowar Superintendent Billerica Public Schools 365 Boston Road Billerica, MA 01821 Dear Superintendent Piwowar: I have received the petition from Alicia Lankowski 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 February 6, 2023, Ms. Lankowski requested the following records: [1.] … who approved for [named person] to speak at the high school today. [2.] … how much she was paid. [3.] … a copy or access to see the full presentation she did … [4.] … a link to what my child saw or the file of the recording sent to me. On February 8, 2023, Ms. Lankowski modified her request and stated that the “statement [released] this morning regarding [named person’s] presentation earlier this week that addressed two of my public records request below: 1. the teacher that oversees the SOCA club was responsible for bringing in [named person] and [named person] was paid for from a grant by Billerica Partners for Education. I still am requesting to know how much [named person] was paid. Ms. Lankowski also requested the following records: 1. …who the approver was at Billerica Partners for Education that approved this grant request…. 2. … who signed the check. 3. … their charter or documentation on the criteria and required documentation they need to fund such requests. The School responded on February 9, 2023. Unsatisfied with the School’s response, Ms. Lankowski petitioned this office and this appeal, SPR23/0269, was opened as a result. 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

Tim Piwowar SPR23/0269 Page 2 February 27, 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(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 School’s February 9th response In its February 9, 2023 response, the School stated, “[t]he Billerica Partners for Education is a private, non-profit organization that is not part of the Billerica Public Schools. As such, the Billerica Public Schools does not have possession of records that are responsive to your request. Furthermore, as a private organization, the Billerica Partners for Education are not subject to the Public Records Law.” Public records; agency relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The School is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying. Based on the School’s response, it is unclear whether there is an agency relationship between the School and Billerica Partners for Education. As such, I find that the School must provide additional information regarding the scope of the relationship between it and Billerica Partners for Education in order to determine whether it has met its burden under G. L. c. 66, §

Tim Piwowar SPR23/0269 Page 3 February 27, 2023 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. Conclusion Accordingly, the School is ordered to provide Ms. Lankowski 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: Alicia Lankowski