Michael Meyers v. Andover, Town of - Public Schools (SPR 20232325)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 13, 2023 SPR23/2325 Alison Phelan Temporary Records Access Officer Andover Public Schools 30 Whittier Court Andover, MA 01810 Dear Ms. Phelan: I have received the petition of Michael Meyers appealing the response of the Andover 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 September 12, 2023, Mr. Meyers requested, “. . . all responsive records between the school committee, school superintendent, labor counsel and [an identified individual] related to the departure of . . . from [the School]. Please include all settlement, non- disclosure and separation agreements of any kind between any of the [listed] parties.” Additionally, on September 13, 2023, Mr. Meyers stated: The legislative body of the Town is an open Town Meeting. The voters of the [Town] voted on May 17, 2022 to approve the following Warrant Article: Prohibiting Use of Non-Disclosure Agreements (NDA’s) . . . In light of this prohibition, please confirm if the APS, ASC, counselor . . . or any other consultant doing business with any subdivision, agent or legal entity of the Town or APS or any of its vendors engaged in the above prohibited action. The School provided a response on September 27, 2023, to the September 13th request. Unsatisfied with the School’s response, Mr. Meyers appealed, and this case 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 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

Alison Phelan SPR23/2325 Page 2 October 13, 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 September 27th response In its September 27, 2023 response to Mr. Meyers’ September 13th request, the School asserts, “that the [School] is not required to answer questions, do research, provide information, or create documents See G. L. c. 66, § 10(a); 32 Op. Atty. Gen. 157, 165 (May 18, 1977).” Subsequent to the opening of this appeal, in an email to this office on October 2, 2023, the School responded to the September 12th request. In this response, the School confirms that it “does not possess any records either between all four referenced parties in the request, or between/among any of the parties in the request.” No Duty to Create Records Under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Where the School has confirmed that it does not possess responsive records, and the School is not required to answer questions or create documents in response to a request, I find the School has met its burden in responding to Mr. Meyers’ request. Conclusion Accordingly, I will consider this administrative appeal closed.

Alison Phelan SPR23/2325 Page 2 October 13, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Michael Meyers