Michael Meyers v. Andover, Town of - Public Schools (SPR 20232335)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 13, 2023 SPR23/2335 Alison Phelan 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 [an identified individual] from APS. Please include all settlement, non- disclosure and separation agreements of any kind between any of the above parties.” On September 26, 2023, the School responded. Unsatisfied with the School’s response, Mr. Meyers petitioned this office and this appeal, SPR23/2335, 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. 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 SPR23/2335 Page 2 October 13, 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. The School’s September 26th Response In its September 26, 2023 response, the School states, “[t]he District does not possess any documents responsive to your request that are between solely the four referenced individuals in your request.” Current Appeal In his appeal, Mr. Meyers states, “[t]he response is unacceptable. I asked for all responsive records between any of the parties; not solely between all four parties.” Based on the School’s response, in conjunction with Mr. Meyer’s appeal, it is unclear if the School possesses any 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). Conclusion Accordingly, the School is ordered to provide Mr. Meyers 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. Mr. Meyers may appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael Meyers