Paul Healey v. Somerset-Berkley Regional School District (SPR 20232905)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 14, 2023 SPR23/2905 Robin Vaccaro Records Access Officer Somerset-Berkley Regional School District 580 Whetstone Hill Road Somerset, MA 02726 Dear Ms. Vaccaro: I have received the petition of Paul Healey appealing the response of the Somerset Berkley Regional School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 20, 2023, Mr. Healey queried: [1.] What is the legal basis for the School Department to maintain a separate archiving system - a Google Cloud / Archiving account outside the Massachusetts or Somerset Server System? Did the School Department obtain legal authority from the Mass Legislature? [2.] What is the legal basis for the School Department to maintain Virtual SC Meetings on a Google Drive? [3.] How many different server systems and for each - what purpose - does the School Department use? When you conduct a search for emails which server systems do you search? Please explain the separate systems, reasons and legal authority to maintain separate systems. [4.] Use of Private E-mails for official business. Under 44 USC 2911 – Disclosure requirement for official business conducted using non-official electronic messaging accounts. (a) In General - An officer or employee of an executive agency may not create or send a record using a non-official electronic messaging account unless such officer or employee - (1) copies an official electronic messaging account of the officer or employee in the original creation or transmission of the record; or (2) forwards a complete copy of the record to an official electronic 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

Robin Vaccaro SPR23/2905 Page 2 December 14, 2023 messaging account of the officer or employee not later than 20 days after the original creation or transmission of the record. Would you please provide any School Department documentation that notes that they have provided this information to the School Department officers and employees? How do you periodically confirm compliance with this requirement? [5.] What is the School Department’s policy and procedures as relates to conducting / receiving non-business related emails on the School Department’s servers? The District provided a response on December 1, 2023. Unsatisfied with the response, Mr. Healey petitioned this office and this appeal, SPR23/2905, 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. 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 District’s December 1st response In its December 1, 2023 response, the District states that it “does not have any documents responsive to your request.” No Duty to Answer Questions, Conduct Research Mr. Healey is 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). However, 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). Where Mr. Healey submitted to the District a list of questions, I find the District is not required to answer such questions under the Public Records Law.

Robin Vaccaro SPR23/2905 Page 3 December 14, 2023 Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Healey wishes to submit a request for public records to the District, and is unsatisfied with the response, he may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Paul Healey