Megan Hamilton-McKeon v. Scituate, Town of - Public Schools (SPR 20240224)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 6, 2024 SPR24/0224 William E. Burkhead Superintendent Scituate Public Schools 606 Chief Justice Cushing Highway Scituate, MA 02066 Dear Superintendent Burkhead: I have received the petition of Megan Hamilton-McKeon appealing the response of the Scituate 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 9, 2024, Ms. Hamilton-McKeon requested “the contents of [her] personnel file and emails…” The School provided a response on January 19, 2024. Unsatisfied with the School’s response, Ms. Hamilton-McKeon petitioned this office and this appeal, SPR24/0224, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Superintendent William E. Burkhead SPR24/0224 Page 2 February 6, 2024 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 19th Response In its January 19, 2024 response, the School provided records. Subsequent to the opening of this appeal, in an email sent on January 29, 2024, the School provided additional records and stated, “[the School] conducted a diligent search of its records in response to [Ms. Hamilton-McKeon’s] request on January 9, 2024… [School] employees have spent several hours searching emails and files for any records responsive to [Ms. Hamilton-McKeon’s] request. It does not appear that [she] was assigned a District email address, and the only emails located in our search were those in which [her] name was mentioned. We did not locate any personnel file for [her]. All records we located were provided to [her] on January 19, 2024. Since then, we have also located a copy of [her] resume, a copy of which is being provided to [her] with this letter. [The School] has not withheld any records and we are not aware of any additional records responsive to [Ms. Hamilton-McKeon’s] request that may be in [the School]’s possession.” Current appeal In her appeal, Ms. Hamilton-McKeon states, “[t]he basis as to what is at issue regarding the request sent is that personnel records and emails are necessary while responding to the Equal Employment Opportunity Commission’s communication of Dismissal and Notice Of Rights process, etc. Scituate Public Schools’ response does not include a complete personnel record, i.e. it does not include the observation documentation discussed and no emails were sent.” 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). Conclusion Where the School does not possess any additional records responsive to the January 9th 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

Superintendent William E. Burkhead SPR24/0224 Page 3 February 6, 2024 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