Kim Edmonds v. Belmont, Town of - Town Clerk (SPR 20231287)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 22, 2023 SPR23/1287 Ellen O’Brien Cushman Town Clerk Town of Belmont 455 Concord Avenue Belmont, MA 02478 Dear Ms. Cushman: I have received the petition of Kim and Stephen Edmonds 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 May 20, 2022, Mr. and Mrs. Edmonds requested: [A]ll emails from 2018 through the present sent by or to Belmont Public Schools and/or Town of Belmont employees, contractors, agents, consultants, attorneys or other person acting on their behalf that pertain, relate or refer to [an identified individual] or to [identified individuals]. We are not seeking any emails sent by or to [an identified individual], Kim or Stephen Edmonds. We are not seeking rosters but are requesting emails relative to the decision or discussion of [an identified person’s] individual placement. We are also not seeking emails relative to general class/team attendance, schedules or testing dates on which [their] name might appear but are seeking emails that are directly related to [an identified individual]. Previous Appeals This request was the subject of previous appeals. See SPR22/1868 Determination of the Supervisor of Records (August 25, 2022), SPR22/2685 Determination of the Supervisor of Records (December 5, 2022), SPR22/2907 Determination of the Supervisor of Records (January 4, 2023), SPR23/0092 Determination of the Supervisor of Records (January 27, 2023), and SPR23/0358 Determination of the Supervisor of Records (March 8, 2023). In my March 8th determination, I ordered the School to provide a response to Mr. and Mrs. Edmonds. On March 22, 2023, the School provided a response. Unsatisfied with 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

Ellen O’Brien Cushman SPR23/1287 Page 2 June 22, 2023 response, Mr. and Mrs. Edmonds petitioned this office and this appeal, SPR23/1287, 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. 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. 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 School’s March 22nd Response In the School’s March 22, 2023 response, the School states: The Belmont Public Schools has provided all records that are responsive to the May 20, 2022, records request. The documents were provided in machine readable format (.pdf format) to the extent feasible according to GL c. 66 & 6A(d); and 950 C.M.R. 32.04(5)(d). 656 documents were provided in the form available, as individual .pdf documents. Current Appeal In their appeal, Mr. and Mrs. Edmonds state: We made a written public records request to the Town of Belmont Town Clerk. The Town Clerk is the Town’s only Record Access Officer (RAO). The RAO forwarded our public records request to the Belmont School Department, which has access to the records requested….

Ellen O’Brien Cushman SPR23/1287 Page 3 June 22, 2023 The determination letter incorrectly states that there is a separate RAO for the School Department. That is false. The Town of Belmont only has one RAO, the Town Clerk, and the specific, written public records request was properly made to the Town’s designated RAO. As such, the appeal was properly before the Supervisor of Records and a decision should have been made on the substantive nature. In their appeal to this office dated February 22, 2023, Mr. and Mrs. Edmonds ask that the RAO be ordered to immediately: [1] Conduct a search for the responsive records through the present date as the RAO should not benefit from its extensive and intentional delays…. [2] Conduct an adequate search of the records by using search terms that include but are not limited to the following…. [3] Conduct a search as previously required for all responsive emails which were sent by or to the following “Belmont Public Schools and/or Town of Belmont employees, contractors, agents, consultants, attorneys or other person acting on their behalf”…. [4] Produce all responsive emails “related to a sibling” that the RAO admitted to having in its possession on June 1, 2022 as they “pertain, relate or refer to” “Kim and Stephen Edmonds” and were admittedly captured in the RAO’s search of our email addresses. In SPR23/0358, the Determination states: Whereas the request for subsequent records was not made directly to the Department’s RAO, I decline to opine on that matter. If Mr. and Mrs. Edmonds would like to obtain copies of these records, Mr. and Mrs. Edmonds are advised that they should make a separate public records request to the School’s RAO. Mr. and Mrs. Edmonds may then appeal the substantive nature of the School’s response within ninety calendar days. See 950 C.M.R. 32.08(1). See SPR23/0358 Determination of the Supervisor of Records (March 8, 2023). This section of SPR23/0358 intended to convey that requests must be made to the RAO—as opposed to the Supervisor of Records. This section of the determination was not intended to convey that Mr. and Mrs. Edmonds were incorrectly making requests to the wrong RAO within the Town of Belmont. Preferred Format G. L. c. 66, § 6A(d) provides, in pertinent part, that “[t]he records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the

Ellen O’Brien Cushman SPR23/1287 Page 4 June 22, 2023 absence of a preferred format, in a searchable, machine readable format.” G. L. c. 66, § 6A(d); see also 950 C.M.R. 32.04(5)(d) (“to the extent feasible, provide public records to a requester in electronic format unless the record is not available in electronic form or the requester does not have the ability to receive or access the records in electronic format and if feasible, in the requester’s preferred format. In the absence of a preferred format, the records shall be provided in a searchable machine-readable form[.])” In light of Mr. and Mrs. Edmonds’ appeal which states: Contrary to its assertions, the RAO has not provided all the records in a searchable, machine readable format. Some of the records produced are in pdf image form and are not searchable. Additionally, in violation of the public records law requirements, the RAO has produced the records in a manner which makes it impossible to identify/be searchable as the records are not labeled by subject or categorized by date, but instead are included in master documents which are also not labeled in any meaningful or identifiable manner. In order to access the records, we are required to log into the RAO’s online public database. See screenshot below of how the records were produced. There are 666 documents with a square next to each one. Most of those master documents each contain a number of responsive records which are not organized or identifiable in any meaningful way. Further, some of the records contain links to Google Docs which have been changed/revised and which continue to be dynamic and within the control of the School Department to continue to change them. We request that all the records are provided in an Excel format that is searchable and machine readable and that each record is individually labeled so that its contents can reasonably be known. In light of Mr. and Mrs. Edmonds claims, I find the School must clarify whether these responsive records can be provided in the format that Mr. and Mrs. Edmonds requested. Unclear if Additional Records Exist In their appeal, Mr. and Mrs. Edmonds assert: The RAO is still in possession of additional responsive public records which are referred to in other records and the RAO has not cited an exemption for refusing to produce them. In addition, the RAO admitted it possessed 2,692 responsive records when it searched our email addresses. However, the RAO did not produce those records. Instead, it chose only to produce the records that were identified by searching “First Name Last Name.” The RAO has intentionally refused to search for the responsive records by querying email addresses and other personally identifiable information. (Appeal SPR23/0092 contained a list of terms that

Ellen O’Brien Cushman SPR23/1287 Page 5 June 22, 2023 should be searched to ensure the RAO has produced all responsive records that are in its possession). Based on Mr. and Mrs. Edmonds’ appeal, it is unclear if the School possesses additional records responsive to the 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). To the extent that records exist, I find the School must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the School is ordered to provide Mr. and Mrs. Edmonds with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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. Sincerely, Manza Arthur Supervisor of Records cc: Kim and Stephen Edmonds Artemis Tingos