Megan Hamilton-McKeon v. Falmouth, Town of - Public Schools (SPR 20240182)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 31, 2024 SPR24/0182 Sharon Reid Executive Assistant Falmouth Public Schools 340 Teaticket Highway Falmouth, MA 02536 Dear Ms. Reid: I have received the petition of Megan Hamilton-McKeon appealing the response of the Falmouth 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 January 10, 2024, Ms. Hamilton-McKeon requested “a copy of [her] Personnel File(s).” Prior Appeal This request was the subject of a prior appeal. See SPR24/0126 Determination of the Supervisor of Records (January 18, 2024). In my January 18th determination, it was my understanding that the School provided a further response on January 17, 2024. Unsatisfied with the School’s response, Ms. Hamilton-McKeon petitioned this office and this appeal, SPR24/0182, 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, § l0A(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 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

Sharon Reid SPR24/0182 Page 2 January 31, 2024 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. The School’s January 17th Response In its January 17, 2024 response, the School provided records and stated, “[a]fter speaking with the Human Resource Department, you were notified that your file was available in the Summer of 2023 through the TalentEd Program for thirty days when you originally made this request to that Department. Your access was closed at the end of the thirty-day period… Enclosed is a hard copy of your personnel file with Falmouth Public Schools.” Subsequent to the opening of this appeal, in a statement sent on January 25, 2024, the School stated, “[the School] provided [Ms. Hamilton-McKeon] with a complete hard copy of her personnel file on January 17, 2024. For some unknown reason, Ms. Hamilton-McKeon is under the impression that there are additional personnel files that have been withheld… [the School] maintains one and only one personnel file for its employees, and that file has been produced in full to Ms. Hamilton-McKeon. There are no other personnel files in the possession, custody or control of the Falmouth Public Schools which are responsive to her request.” Current appeal In her appeal, Ms. Hamilton-McKeon states, “personnel records and emails are necessary while going through the process of making a complaint and preparing for an upcoming conference, etc. Please note that the personnel file should at the very least include files from positions at Falmouth High School, East Falmouth Elementary School, Lawrence School and North Falmouth Elementary School.” No Duty to Create Records Please be advised, under the Public Records Law the School is not required to create a record in response to the request. See G. L. c. 66, § 6A(d). 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, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977).

Sharon Reid SPR24/0182 Page 3 January 31, 2024 Conclusion Where the School does not possess any additional records responsive to the January 10th request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Hamilton-McKeon is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Manza Arthur Supervisor of Records cc: Megan Hamilton-McKeon