Charlie McKenna v. Saugus, Town of - Public Schools (SPR 20232236)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 29, 2023 SPR23/2236 Dawn Trainor Saugus Public Schools 23 Main Street Saugus, MA 01906 Dear Ms. Trainor: I have received the petition of Charlie McKenna, of The Daily Item, appealing the response of the Saugus 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 August 31, 2023, Mr. McKenna requested “[a] copy of any and all disclosure forms filed by Superintendent of Schools Erin McMahon.” In a September 8, 2023 response, the School informed Mr. McKenna, “[t]hat would be with the State Ethics Commission, not us. . . . Given your inquiry, I had it checked and there is not a copy in [Ms. McMahon’s] file.” As a result of the School’s September 8th response, Mr. McKenna 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 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). 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

Dawn Trainor SPR23/2236 Page 2 September 29, 2023 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 his petition, Mr. McKenna asserts, “[t]he document, [a Conflict-of-Interest Law disclosure form] would be filed with the [School], per the [State Ethics Commission]. I have also been led to believe the document was given to multiple members of the School Committee.” In a September 19, 2023 conversation between a representative of the School and a Public Records Division attorney, the School informed this office that a search was made of Ms. McMahon’s personnel file in the Human Resources Office at the School, and a search was made at the Town Clerk’s Office. However, the Conflict of Interest Law disclosure form was not found in the School’s Human Resources Office or the Town Clerk’s Office. 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). Based on the School’s response, it remains unclear if the record ever existed, or whether the record existed and was not retained by either the School or the Town Clerk’s office. In addition, based on Mr. McKenna’s assertion that “. . . the document was given to multiple members of the School Committee[,]” it is unclear whether the record may be in the possession, custody or control of the School Committee or any other department or office. Therefore, the School must clarify this matter. Conclusion Accordingly, the School is ordered to provide Mr. McKenna with a response to his 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.

Dawn Trainor SPR23/2236 Page 3 September 29, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Charlie McKenna