Ken Tashjy v. Newburyport, City of - Public Schools (SPR 20230590)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 11, 2023 SPR23/0590 Philip Littlehale Public Records Officer Newburyport Public Schools 70 Low Street Newburyport, MA 01950-4086 Dear Mr. Littlehale: I have received the petition of Kenneth Tashjy, Esq., on behalf of the Citizens for Responsible Education (CRE), appealing the response of the Newburyport 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 December 27, 2022, Mr. Russell sought “…an opportunity to inspect or obtain copies of the following regarding the professional development training provided by Michael Eatman/ Culture7.co during 2019, 2020, 2021 and 2022: [1] Attendance reports; [2] Documentation if training was offered as continuing education training; [3] Documentation if training was offered as in-service training; and, [4] Documentation of certifications, if offered.” The School responded on January 10, 2023. Unsatisfied with the School’s response, Attorney Tashjy petitioned this office and this appeal, SPR23/0590, 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. 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

Philip Littlehale SPR23/0590 Page 2 April 11, 2023 Att’y 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. The School’s January 10th response In its January 10, 2023 response, the School states, “[i]n regard to question one, [the School] has conducted a diligent, exhaustive search of its records but has not located any attendance records for these programs. As such, there are no records responsive to [the] request. In regard to questions two, three and four, no in-service credits, continued education units (CEU), or certifications were offered/granted by the [School] as a part of any programs conducted by Mr. Eatman or his company. As such, there are no records responsive to your requests.” Current appeal In his March 28th petition, Attorney Tashjy contends, “[n]otwithstanding the fact that the [School] paid in excess of $127,000.00 to Michael Eatman of Culture7 Consulting for staff and professional development training, it has utterly failed to retain and maintain any records related to those training sessions, including personnel and individual training reports, training materials, session schedules, attendance reports, or related correspondence, as required per the Municipal and Statewide Record Retention Schedules.” Records in Existence; Records Management Please be advised that 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). 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. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The School, as a custodian of records, has an affirmative duty to maintain, secure, and preserve governmental records throughout the records life cycle. 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. In addition, training workshops on records management are conducted upon request. 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.

Philip Littlehale SPR23/0590 Page 3 April 11, 2023 Where the School has explained that after a diligent search it did not find the requested attendance records for the trainings, the School must explain whether the attendance records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). If records were destroyed, I find that the School must demonstrate whether it followed proper records retention protocol. The School must clarify this matter. Conclusion Accordingly, the School is ordered to provide Attorney Tashjy with a response to the 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: Kenneth Tashjy, Esq.