Malden NewsNetwork v. Malden, City of - Public Schools (SPR 20232615)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2023 SPR23/2615 Shirley Dorai Records Access Officer Malden Public Schools 215 Pleasant Street Malden, MA 02148 Dear Ms. Dorai: I have received the petition of Malden News Network appealing the response of the Malden 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 October 10, 2023, the requestor sought the following: 1) Any communication the School supplied to the Supervisor of Records - email, report, document or other notification - demonstrating that the School has followed the proper record retention protocol with respect to the handling of video associated with special education transportation, and specifically NRT, Inc. 2) A directory, listing, index, inventory, catalogue or other commonly available record of retention demonstrating [the School’s] adherence to SPR19/2551 for retention of video files related to special education transportation services provided by NRT, Inc - including the timeframe of the last month, preceding backwards from the date of [the School’s] response to this request. The School responded on October 25, 2023, providing records responsive to Part 1 of the request. Unsatisfied with the School’s response, the requestor 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 municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, 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

Shirley Dorai SPR23/2615 Page 2 November 14, 2023 § 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. 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 the appeal petition, the requestor contends that “there were two parts to this request. The Response is adequate for the first part. However, the second part appears to have been overlooked.” The School’s October 25th Response In its October 25, 2023 response, the School provides records responsive to Part 1 of the request. Additionally, in an email to this office and the requestor on November 1, 2023, regarding Part 2 of the request, an attorney for the School states that “the District does not have any directory, listing, category or other similar documentation as requested. There are no responsive documents.” Please be advised that 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, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, 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). In a telephone conversation with this office on November 9, 2023, an attorney for the School confirmed that the School does not possess records responsive to Part 2 of the request. Conclusion Where the School confirmed that it does not possess additional records responsive to the request, I will now consider this administrative appeal closed.

Shirley Dorai SPR23/2615 Page 3 November 14, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network