Jane MacKinnon v. Belmont Public Schools (SPR 20230438)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 20, 2023 SPR23/0438 Artemis Tingos Office of the Superintendent of Schools Town of Belmont Public Schools 644 Pleasant Street Belmont, MA 02478 Dear Mr. Tingos: I have received the petition of Jane MacKinnon 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 February 13, 2023, Ms. MacKinnon requested “…a copy of all curriculum material, including teacher training material, used in the Chenerey Middle School 5th-8th [G]rade Community Blocks from 9/1/2020 to present.” On February 14th, the School provided a response asserting, “[t]he [School] does not possess any documents that are responsive to your Public Records Request. We now consider your request closed. Community Blocks are not a separate curriculum, therefore no training or curriculum materials exist. All presentations documents were shared with families via the [S]chool Principal. If you would like those documents again, please let us know.” After receiving the School’s February 14th response, Ms. MacKinnon petitioned the Supervisor of Records (Supervisor) on March 3rd, and this appeal was opened. 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) (written response must “identify 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 SPR23/0438 Page 2 March 20, 2023 any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. Current appeal In her March 3rd petition for this appeal, it is Ms. MacKinnon’s contention that, “[t]he Town of Belmont Public Schools’ response to my request admitted that it possessed presentation documents yet those records were not produced in response to my request and the [School] has admitted that it is in possession of the Community Block curriculum material (worksheets, google forms, surveys, teacher choice materials, teacher-generated lessons, etc.) and teacher training materials that it has not produced.” Based on the School’s February 14th response and Ms. MacKinnon’s March 3rd petition, it is unclear whether the School has the responsive records or information that Ms. MacKinnon contends the School has in its possession regarding Community Block curriculum material. 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). 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). Conclusion Accordingly, the School is ordered to provide Ms. MacKinnon with a response to her request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Janie MacKinnon