Ben Tobin v. Mohawk Trail Regional School District (SPR 20230274)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 27, 2022 SPR23/0274 Karen Totman Executive Secretary to the Superintendent of Schools Mohawk Trail School System 24 Ashfield Road Shelburne Falls, MA 01370 Dear Ms. Totman: I have received the petition of Ben Tobin appealing the response of the Mohawk Trail 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 January 9, 2023, Mr. Tobin requested the following records: [1] ... the school’s bullying incident data. [2] ... the criteria, procedures, and or policies for establishing a diagnosis of SLD. The District provided a response on January 9, 2023. Unsatisfied with the District’s response, Mr. Tobin petitioned this office and this appeal, SPR23/0274, 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

Karen Totman SPR23/0274 Page 2 February 27, 2023 The District’s January 9th Response In its January 9, 2023 response, the District replied to the first request and stated, “[t]he District does not possess any existing public records that are responsive to the request.” In response to the second request, the District explained, “...the criteria, procedures, and or policies for establishing a diagnosis of SLD,” the District is not in possession of any responsive documents. To determine SLD eligibility, the District uses the IEP flow chart provided by DESE and is guided by all applicable state and federal special education laws and regulations.” Current appeal In his appeal, Mr. Tobin states, “[u]nder the bullying law (Section 370) as far as bullying in schools, there is a requirement to send all bullying incident data to the state. The district is saying they have no responsive records which would indicate there are zero reported incidents of bullying which is a statistical impossibility. That of all the schools in the district there is not one identifiable example of bullying? I am requesting that the district clarify their position and that if the record exists that it be provided free of charge as it would already have been assembled for DESE.” Mr. Tobin further asserted, “[f]or part 2, legally the district must have policies and procedures for establishing a diagnosis of SLD per the memo from DESE and under the federal and state law...so my question is the same...is the district stating that they do not have the required policies and procedures for establishing a diagnosis of SLD? The flow chart mentioned is not specific to SLD and is only one of the documents involved in the process but it does not cover all of the documents, policies, and procedures required for establishing a diagnosis of SLD. Under IDEA and the state law, students must be identified and evaluated. Under state law they must also be diagnosed per chapter 71B sec 3.” No Duty to Create Records Under the Public Records Law, the District is not required 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 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). Based upon a conversation between a Public Records Division senior attorney and a District representative, the District confirmed that it has no responsive records. Conclusion Accordingly, where the District has confirmed that it does not possess records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Tobin is advised that this office shares jurisdiction with the Superior Court of the

Karen Totman SPR23/0274 Page 3 February 27, 2023 Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Ben Tobin