Colin J. Hogan v. New Bedford, City of - Public Schools (SPR 20230423)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 16, 2023 SPR23/0423 Rebecca Hemsley Director of Human Capital Services New Bedford Public Schools 55 County Street, Room 101 New Bedford, MA 02740 Dear Director Hemsley: I have received the petition of Colin Hogan, of the New Bedford Light, appealing the response of the New Bedford 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 14, 2023, Mr. Hogan requested a “... report of attendance data within the New Bedford Public Schools (‘the district’) and at New Bedford High School (‘the high school’) broken down by demographic subgroups for the 2022 - 2023 school year [and] ... include the district’s overall attendance rate, average number of absences ...” The School responded on March 2, 2023. Unsatisfied with the School’s response, Mr. Hogan petitioned this office and this appeal, SPR23/0423, 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

Director Rebecca Hemsley SPR23/0423 Page 2 March 16, 2023 The School’s March 2nd response In its March 2, 2023 response, the School provided the requested attendance records. Current appeal In his appeal, Mr. Hogan asserts, “... on March 2, 2023, the following data was missing: [Average number of absences for the district and for the high school in every demographic subgroup; Chronically Absent (10%)” for ‘female’ and ‘male’ demographic subgroups for both the district and high school [and] Chronically Absent (20%)” for every demographic subgroup except ‘female’ and ‘male’.” Based on Mr. Hogan’s claims, in conjunction with the School’s response, it is unclear if the School possesses any additional records responsive to his request. 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). However, 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). Consequently, the School must clarify whether additional records exist. Conclusion Accordingly, the School is ordered to provide Mr. Hogan with a response to the request, provided 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. Mr. Hogan may appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colin Hogan