Courtney F. Karp v. Boston, City of - Public Schools (SPR 20232936)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2023 SPR23/2936 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Courtney F. Karp appealing the response of the Boston Public Schools (School/City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 13, 2023, Ms. Karp requested “…all records of the Boston Public Schools related to the development and funding of the Henderson Inclusion After School Program from the period July 1, 2023 through [November 13, 2023].” In a November 20, 2023 email, the City informed Ms. Karp, “I ask that you please consider filing all of your public records requests on the City’s online portal. This portal may be used for all City department, including the [School] Department. The link, located on the home of Boston.Gov, is found below . . . It is in your best interest as you will receive an immediate acknowledgment and request reference number. Should you continue to file requests via email there may be a delay until a department such as the [School] Department would receive and review the request.” In a November 30, 2023 email to the City, Ms. Karp wrote, “…I am not sure if the City counted the Friday after Thanksgiving as a business day or not, but by my count it has been 10 days since my records request was made. Please provide a response or update on status.” On Saturday, December 2nd, Ms. Karp emailed the City again, stating, “[p]lease provide a response to my public records request by [Close of Business] Monday December 4, 2023 or I will be appealing your failure to respond as a denial of my request to the Supervisor of [Records] in Secretary Galvin’s [O]ffice promptly the next day … You have only contacted me to request use of a portal, where the statute does not require any one means of submitting a public records request …” On December 5, 2023, Ms. Karp petitioned this office, as a result of not receiving any further communication or response regarding her request, and this appeal was opened. 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

Shawn A. Williams, Esq. SPR23/2936 Page 2 December 19, 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) (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. Current Appeal In her December 5th petition, Ms. Karp asserts, “[t]his request is succinct in the scope of the subject matter and time frame covered. I received no response until November 20, 2023 when [Ms. Shirley] replied to my e-mail asking me to consider making my request through use of an online portal on Boston’s website. It was not clear whether doing so would reset the clock on the November 13 request (and it seemed likely that it would as it would be logged as a new request), and since I had submitted my request consistent with the requirements of [the Public Records Regulations], I did not use portal. As you are well aware, an RAO shall not require a specific form be used[by]requesters, but may make forms available…” Subsequent to the opening of this appeal, on December 7th, the City sent this office an email stating, “[a]s noted in the [November 20th email to the requestor], I contacted the request[o]r asking that she consider submitting her request via our online portal. Unbeknownst to me, she failed to take that suggestion and I was unaware that this request was not added to our request tracking system until we rec’d the appeal. I have since added her request to our tracking system and have assigned the request to the appropriate department for review. We hope to have a response as soon as possible. I ask that you please close this appeal, now that we have the request and it is in process.” As a result of the City’s December 7th email to this office, Ms. Karp asserted, “[s]ince I did not receive any records during the 10 day period since my initial request and have not yet received any, I would request that [the Supervisor] not close this appeal … [b]ased on the

Shawn A. Williams, Esq. SPR23/2936 Page 3 December 19, 2023 [December 7th email from [the City], Ms. Shirley, could have input my request to the portal at any time between 11/13 and 11/20 when she informed me of the portal, but chose not to do so until she received notice of this appeal…” The City is advised, “requests for public records may be made orally in person to a records access officer or custodian or may be written … written requests may be delivered by the [requestor] to the address or designated website or email address of a records access officer or custodian: (1); (2) by mail; (3) electronically; or (4) by facsimile, if custodian has facsimile access.” See 950 C.M.R. 32.06(1)(a); see also 950 C.M.R. 32.06(1)(c). As such, I find that the City did not meet its burden in responding to Ms. Karp’s November 13th request. Also, based on the City’s December 7th response, it is unclear whether the School possesses records responsive to Ms. Karp’s November 13th 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). Additionally, 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). Consequently, the School must clarify if it possesses responsive records. Conclusion Accordingly, the School is ordered to provide Ms. Karp with a response to her 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. Ms. Karp 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: Courtney F. Karp