Robert Moray v. Wellesley, Town of - Public Schools (SPR 20230270)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 27, 2023 SPR23/0270 Cynthia D. Mahr Assistant Superintendent for Finance and Operations Wellesley Public Schools 40 Kingsbury Street Wellesley, MA 02481 Dear Ms. Mahr: I have received the petition of Robert Moray appealing the response of the Wellesley Public Schools (School/WPS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 8, 2023, Mr. Moray requested “any contracts with the vendor ATX Learning that were initiated on or after Friday, July 1, 2022.” The School responded on February 10, 2023, indicating it has no responsive records. Unsatisfied with the School’s response, Mr. Moray appealed, and this case 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. Att’y 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. 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. 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

Cynthia D. Mahr SPR23/0270 Page 2 February 27, 2023 The School’s February 10th Response In its February 10, 2023 response, the School states that “Wellesley Public Schools has no responsive records.” In his appeal petition, and in his original request, Mr. Moray refers to a “job posting by ATX Learning involving the Wellesley Public Schools.” Please be advised that 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). Additionally, 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). In an email to Mr. Moray and this office on February 13, 2023, an attorney for the School explains the following: WPS has not engaged with ATX to post any WPS position. While Mr. Moray attributes this posting to that of a special education teacher for WPS, there is nothing in the posting that indicates the identity of the employer. To the extent that ATX is soliciting applications purportedly on WPS’ behalf, it is doing so without WPS’ permission or knowledge. For those reasons, there are no records responsive to his request. In a telephone conversation with this office on February 22, 2023, the School reiterated the information provided above, and further confirmed that it has no responsive records. Conclusion Where the School has confirmed that it does not possess records responsive to Mr. Moray’s request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Robert Moray Alexandra Rubin, Esq.