Martin Y. Benson v. Acton-Boxborough Regional School District (SPR 20230391)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 14, 2023 SPR23/0391 Andrew Shen Records Access Officer Acton-Boxborough Regional School District 15 Charter Road Acton, MA 01720 Dear Mr. Shen: I have received the petition of Martin Y. Benson appealing the response of the Acton- Boxborough Regional School District (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 16, 2022, Mr. Benson requested, “…any and all text messages exchanged between [named persons] during the October 15, 2020, meeting of the Acton Boxborough Regional School Committee …” Previous appeal The requested records were the subject of a previous appeal. See SPR22/2664 Determination of the Supervisor of Records (November 30, 2022). The School responded on December 1, 2022. Unsatisfied with the response, Mr. Benson petitioned this office and this appeal, SPR23/0391, 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 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

Andrew Shen SPR23/0391 Page 2 March 14, 2023 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. The School’s December 1st response In its December 1, 2022 response, the School stated, In our most recent response regarding your request for text messages during the October 15, 2020 School Committee meeting, we shared that both [named persons] reached out to their service providers to inquire about accessing messages deleted on their devices. [Named person] service provider indicated that the text messages are not retrievable from their end. [Named person] provider clarified at that time that requests of this nature require engagement with their legal counsel. In your appeal, you indicated that an additional effort needs to be made to retrieve the text messages from [a named person] service provider. To that end, [a named person] contacted her cell phone service provider (T- Mobile) and inquired about the ability to retrieve previous texts. In their exchange, T-Mobile clarified that they do not store those messages and they cannot be retrieved. Specifically, they replied to [the named person’s] inquiry with the response: ‘...the entire team of T-Mobile does not have any access to your information. We do not store the confidential information. As we do not have access to it.’ and then with a follow up confirmation, ‘you cannot get the information that is personal and confidential. As we do not store it so it is impossible to retrieve the deleted information.’ For your convenience, I am including with this response the screen shots (in 4 images) of the exchange that took place between [the named person] and the representative from T-Mobile. Records Management 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. See G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). For further guidance in records management and retention, the School may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request. Where the School states that members of the School Committee deleted the text messages and the service providers are unable to retrieve said text messages, I find that the School must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the School to review the records retention materials available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm.

Andrew Shen SPR23/0391 Page 3 March 14, 2023 Conclusion Accordingly, whereas the requested records no longer exist, I will consider this appeal closed. If Mr. Benson is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Martin Y. Benson