Nataly Gomez v. Easthampton, City of - Public Schools (SPR 20231678)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 3, 2023 SPR23/1678 Maureen Binienda Interim Superintendent Easthampton Public Schools 50 Payson Avenue, 2nd Floor Easthampton, MA 01027 Dear Interim Superintendent Binienda: I have received the petition of Nataly Gomez appealing the response of the Easthampton 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 26, 2023, Ms. Gomez requested: [1] Any and all communications, including but not limited to, emails and text messages regarding myself or [an identified individual] – from August 1, 2021 to August 1, 2022; [2] Any and all administrative documents or forms regarding myself or [an identified individual] from August 1, 2021 to August 1, 2022. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/1290 Determination of the Supervisor of Records (June 27, 2023). In my June 27th determination, I ordered the School to provide an estimated date as to when it intends to complete the search and provide Ms. Gomez with the outstanding records. The School provided a response on June 29, 2023. Unsatisfied with the School’s response, Ms. Gomez petitioned the Supervisor of Records, 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 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

Interim Superintendent Maureen Binienda SPR23/1678 Page 2 August 3, 2023 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 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. The School’s June 29th response In its June 29, 2023 response, the School states, “[o]n June 14, 2023 an email was sent from IT Director . . . to you and included all information applicable to Item #1 of your request.” Further, the School’s June 29th response states, “[o]n June 14, 2023, the prior Superintendent LeClair sent an attachment, via email, to you to address [I]tem #2 of your request. This completes the request from our view. All documents in our possession have been provided.” In a June 29th email to Suzanne Colby at the School and copied to this office, Ms. Gomez asserts: I just want to make sure that everyone is absolutely positive that this is the stance [Ms. Colby’s] taking in this issue. It is extremely unusual that you have no record of [un-enrolling an identified individual], that you filled out zero paperwork, and [the School] did not receive any paperwork from the person [the School] accepted the [un-enrollment] request from? Please explain how can students just be unenrolled from your Schools by anyone and [whisked] off to another school and there will be zero trace left behind? No Duty to Create Records Please be advised, under the Public Records Law the School is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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). Additionally, please note that under the Public Records Law, a public employee is not required

Interim Superintendent Maureen Binienda SPR23/1678 Page 3 August 3, 2023 to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). However, based on Ms. Gomez’s claims, it is unclear whether the School conducted a diligent search for any records regarding Item 2 of her request. It is also uncertain whether any record or records existed, but may have been destroyed. The School must clarify these matters. Conclusion Accordingly, the School is ordered to provide Ms. Gomez 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: Nataly Gomez