Kim Edmonds v. Belmont, Town of (SPR 20230358)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 8, 2023 SPR23/0358 Artemis Tingos Records Access Officer Belmont Public Schools Office of the Superintendent 644 Pleasant Street Belmont, MA 02478 Dear Ms. Tingos: I have received the petition of Kim and Stephen Edmonds appealing the response of the Belmont Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 20, 2022, Mr. and Mrs. Edmonds requested: [A]ll emails from 2018 through the present sent by or to Belmont Public Schools and/or Town of Belmont employees, contractors, agents, consultants, attorneys or other person acting on their behalf that pertain, relate or refer to [an identified individual] or to [identified individuals]. We are not seeking any emails sent by or to [an identified individual], Kim or Stephen Edmonds. We are not seeking rosters but are requesting emails relative to the decision or discussion of [an identified person’s] individual placement. We are also not seeking emails relative to general class/team attendance, schedules or testing dates on which [their] name might appear but are seeking emails that are directly related to [an identified individual]. Previous Appeals This request was the subject of previous appeals. See SPR22/1868 Determination of the Supervisor of Records (August 25, 2022), SPR22/2685 Determination of the Supervisor of Records (December 5, 2022), SPR22/2907 Determination of the Supervisor of Records (January 4, 2023), and SPR23/0092 Determination of the Supervisor of Records (January 27, 2023). In my January 27th determination, I closed the appeal where I learned the School provided a supplemental response on January 26, 2023. Unsatisfied with the School’s January 26th response, Mr. and Mrs. Edmonds petitioned this office and this appeal, 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

Artemis Tingos SPR23/0358 Page 2 March 8, 2023 SPR23/0358, was opened as a result. After this appeal was opened, the School provided a supplemental response on February 28, 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(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. 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. The School’s January 26th and February 28th Responses In the School’s January 26, 2023 response, the School stated “[i]t seems the files listed in Ms. Edmonds’ appeal letter section (e) were corrupted in the transfer of files or has specific Google access permissions. Our Technology Department was able to retrieve the information and I will upload the records to the NextRequest system.” In the School’s supplemental February 28th response, the School states, “[it] has provided all documents in their possession as requested and is not able to change formats. There was no reply to a-d as they were not responsive to the records request.” Current Appeal In their appeal, Mr. and Mrs. Edmonds state: The RAO admitted to having at least 2,692 responsive records, yet has released only a small fraction of those records without citing any exemption to justify its refusal to produce the remainder of the records…. The RAO has repeatedly failed to respond to our attempts to resolve this matter outside this appeal system. . . . In this case, the RAO purposely used a

Artemis Tingos SPR23/0358 Page 3 March 8, 2023 specific search term (first name last name) and is refusing to produce the remainder of the 2692 responsive records it already admitted it located when it searched by our email addresses…. [W]e respectfully request the RAO be ordered to immediately: … Produce all records in [a] searchable format as required by Mass. G.L. c. 66 Section 6A(d). Some records were produced as unsearchable PDF images and the RAO has refused to respond to requests to provide those records in searchable format… No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 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). Where the School confirmed that it has no additioanl records in its possession responsive to the May 20th request, I find that this portion of the appeal is resolved. Preferred Format G. L. c. 66, § 6A(d) provides, in pertinent part, that “[t]he records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format.” G. L. c. 66, § 6A(d); see also 950 C.M.R. 32.04(5)(d) (“to the extent feasible, provide public records to a requester in electronic format unless the record is not available in electronic form or the requester does not have the ability to receive or access the records in electronic format and if feasible, in the requester’s preferred format. In the absence of a preferred format, the records shall be provided in a searchable machine-readable form[.])” In light of Mr. and Mrs. Edmonds’ appeal which states that “[s]ome records were produced as unsearchable PDF images,” I find the School must clarify whether these responsive records can be provided in the format that Mr. and Mrs. Edmonds requested. Public Records Requests; Petitions to Supervisor of Records In Mr. and Mrs. Edmonds’ February 22nd appeal, they indicate that based on the responses provided by the School, they are now seeking to obtain several categories of records that may be in the School’s possession, custody, or control. Mr. and Mrs. Edmonds are reminded that a requestor may petition the Supervisor of Records (Supervisor) only after a written request has been made to the records access officer (RAO) of the governmental entity that creates or

Artemis Tingos SPR23/0358 Page 4 March 8, 2023 receives the records. 950 C.M.R. 32.01(1). Additionally, the written request must reasonably describe the public records sought. Id. Whereas the request for subsequent records was not made directly to the Department’s RAO, I decline to opine on that matter. If Mr. and Mrs. Edmonds would like to obtain copies of these records, Mr. and Mrs. Edmonds are advised that they should make a separate public records request to the School’s RAO. Mr. and Mrs. Edmonds may then appeal the substantive nature of the School’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Conclusion Accordingly, the School is ordered to provide Mr. and Mrs. Edmonds with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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: Kim and Stephen Edmonds