Mira Belenkiy v. Sharon, Town of - Public Schools (SPR 20240293)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 14, 2024 SPR24/0293 Meg Dussault, Ed.D. Assistant Supervisor Sharon Public Schools 75 Mountain Street Sharon, MA 02067 Dear Dr. Dussault: I have received the petition of Mira Belenkiy appealing the response of the Sharon 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 28, 2024, Ms. Belenkiy requested: “…sex ED curriculum materials for the Sharon Middle School [G]rades 6, 7, 8. Materials include:” [1] Slide shows either shown to students or used internally; [2] Emails sent to parents describing curriculum; [3] Any handouts, quizzes, surveys, used in class. For example, you sent me the 6th grade scenarios. Any texts/pictures associated with interactive activities; [4] Names/URLs of videos (may be part of slide shows); [5] Digital documents indicating what physical demonstration materials are used. For example, the high school kids practice putting on condoms and has descriptions of the kits purchased and (presumably receipts). The middle school also covers contraception. If the teachers want to share just a list of items used in class instead of hunting for receipts that is ok; [6] Internal lesson plans not shared with parents/students. The School provided a response on January 30, 2024. Unsatisfied with the response, Ms. Belenkiy petitioned this office and this appeal, SPR24/0293, was opened as a result. Subsequently, the School provided a further response on February 5, 2024. 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 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

Dr. Meg Dussault SPR24/0293 Page 2 February 14, 2024 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. 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 30th and February 5th responses In the School’s January 30, 2024 response, the School stated, “...please find all documents in the District’s possession that are responsive to your request. Moreover, documents on the topics addressed by your request, including slide shows/videos, are readily available here: [an identified website]. Please be advised that by way of the public records request process, the District is not required to answer questions, do research, provide information, or create documents.” In its February 5th response, the School advised, “[p]lease be advised that you should be able to access the 8th grade slideshow on the links provided in the response, again here for ease ... The District does not have a 7th grade slideshow– only grades 6 and 8. In addition, to confirm, the District does not have any other handouts/documents that are responsive to your request.” Current appeal In her February 12, 2024 appeal, Ms. Belenkiy asserted, “[a] parent of a 7th grader shared that the class watched a video and filled out a form. The response to my request did not share any of this material. It also did not share any ‘master file’ or curriculum that contained links to this material. The response claimed there were absolutely no curriculum materials related to 7th grade sex-ed.” Unclear if additional records exist Although the School states that Ms. Belenkiy has been provided all responsive records, based on her appeal, it is unclear if the School possesses additional records responsive to the request. Specifically, the School must clarify if it possesses 7th grade form(s) and video as indicated in Ms. Belenkiy’s petition. 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). Custodians are expected to use their

Dr. Meg Dussault SPR24/0293 Page 3 February 14, 2024 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 whether additional records exist. Conclusion Accordingly, the School is ordered to provide Ms. Belenkiy with a response to the request, provided 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. Belenkiy 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: Mira Belenkiy