Kevin Wood v. Georgetown, Town of - Public Schools (SPR 20230887)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2023 SPR23/0887 Carol C. Jacobs Superintendent of Schools Georgetown School Department 51 North Street Georgetown, MA 01833 Dear Superintendent Jacobs: I have received the petition of Kevin Wood appealing the response of the Georgetown School Department (Department) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On November 1, 2022, Mr. Wood requested the following records: [1] Handwritten notes of all committee members created or reviewed during the October 27, 2022 school committee meeting. [2] Electronically stored information [ESI] of all committee members created or received during the October 27, 2022 school committee meeting. Previous appeals This request was the subject of previous appeals. See SPR22/2875 Determination of the Supervisor of Records (December 30, 2022) and SPR23/0141 Determination of the Supervisor of Records (February 7, 2023). In my December 30th determination, I directed the Department to clarify if additional records exist. The Department provided a response on January 19, 2023, stating that they had no additional records. The Department provided a further response on April 28, 2023. Unsatisfied with the Department’s April 28th response, Mr. Wood petitioned this office and this appeal, SPR23/0887, 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). 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

Carol C. Jacobs SPR23/0887 Page 2 May 16, 2023 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 Department’s April 28th response In its April 28, 2023 response, the Department stated the following: First, the district produced all available documents. [School Committee member], the Committee and the administrators that were at the meeting were asked for any records pertaining to Mr. Wood’s records request twice. She also spoke with the School Committee chair and the attorney specifically because there were so many allegations that her actions at the meeting were violating open meeting law because she was texting. She denied that all records existed. Current appeal In his appeal, Mr. Wood states the following: Denying records existed is a) not the same as creating public records; b) not preserving them after receiving a preservation notice, and; c) destroying public records. A violation of GL c. 66 sec 15. There is compelling evidence a public record was created. In fact RAO Jacobs admitted she thought [School Committee member] texted at the October 27, 2022 meeting during a December 15, 2022 phone call. No Duty to Create Records In a communication between a Public Records Division staff attorney and a Department representative, the Department confirmed that it has no records responsive to the request. Under the Public Records Law, there is no obligation to create a record in response to a public records request. See G. L. c. 66, § 6A(d), 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only 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).

Carol C. Jacobs SPR23/0887 Page 3 May 16, 2023 Conclusion Accordingly, where the School has confirmed that it does not possess additional records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Wood is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66 § 10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Kevin Wood