Leigh Blander v. Marblehead, Town of - Public Schools (SPR 20232343)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 17, 2023 SPR23/2343 Lisa Dimier Records Access Officer Marblehead Public Schools Administration Building 9 Widger Road Marblehead, MA 01945 Dear Ms. Dimier: I have received the petition of Leigh Blander, of Marblehead News, appealing the response of the Marblehead 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 11, 2023, Ms. Blander requested the following records, and on August 15, 2023, clarified the request to include dates through August 2, 2023: [1.] all correspondence between the attorneys for the district and the attorney for [an identified individual] [2.] copies of all complaints filed by any party against [an identified individual] during his tenure concerning his professional competence. [3.] All text and email messages between School Committee members from June 21-Aug 2. [4.] School Committee emails and texts to ... in June 21 through Aug. 2. [5.] All School Committee emails to ... and his attorney ... in July through Aug. 2. [6.] All emails between the School Committee lawyer and [another] lawyer. Prior Appeal This request was the subject of a prior appeal. See SPR23/2105 Determination of the Supervisor of Records (September 19, 2023). In my September 19 determination, I learned that the School would provide a further response to Ms. Blander. The School responded on October 2, 2023. Unsatisfied with the response, Ms. Blander petitioned this office and this appeal, SPR23/2343, was opened as a result. 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

Lisa Dimier SPR23/2343 Page 2 October 17, 2023 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. Attorney 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. The School’s October 2nd Response In its October 2, 2023 response, the School advised, “... the district followed up with all the individuals that were the subject of the appeal regarding the text messages. Counsel asked all individuals to contact their providers to see if the deleted text messages would be retrieved. [The identified individuals] confirmed that they followed up with their cell phone carrier and the text messages could not be retrieved. [An identified individual] also informed counsel of the following that she wanted to clarify: I have no text messages on the dates requested between me and ... on my cell phone. I have no back up records of any texts and my carrier does not have any records of text messages between me and ... on those dates. As a result, the District is unable to produce any additional documents.” The School further advised that, “... counsel for the district has made it clear that communications such as text message can be considered a public record and must be preserved in a manner that the District is able to archive and produce when requested. It is our hope that our efforts will allow us to be appropriately responsive to requests moving forward.” Current Appeal In her appeal, Ms. Blander asserts, “[g]iven that there is ample evidence that texts can, in fact, be retrieved (see this article in Business Insider), we are asking the School Committee to provide written proof from their cell carriers that they cannot retrieve the messages.” Records Management Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. See G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). For further guidance in records management and retention, the School may contact the Records Management Unit

Lisa Dimier SPR23/2343 Page 3 October 17, 2023 (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request. Where the School states that members of the School Committee deleted the text messages and the service providers are unable to retrieve said text messages, I find that the School must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the Town to review the records retention materials available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. Conclusion Accordingly, whereas the requested records no longer exist, I will consider this appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Leigh Blander