Colman Herman v. Boston, City of - Public Schools (SPR 20240352)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 20, 2024 SPR24/0352 Shawn A. Williams, Esq. Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Colman Herman appealing the response of the Boston 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 December 25, 2023 Mr. Herman requested, “… any and all communications in the files of Boston Public Schools related to the article at the following link. https://commonwealthbeacon.org/education/bostonschools-grudgingly- release-some-sexual- misconductdata ... for the period December 10, 2023 to the present.” The School responded on January 10, 2024 and January 26, 2024. Unsatisfied with the School’s responses, Mr. Herman petitioned this office and this appeal, SPR24/0352, was opened as a result. Subsequently, I learned that the School provided a further response to Mr. Herman on February 6, 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 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

Shawn A. Williams, Esq. SPR24/0352 Page 2 February 20, 2024 The School’s January 10th January 26th and February 6th responses In its January 10, 2024 response, the School stated, "[d]ue to the nature of your request additional time is needed. As such, the School will need up to, but no more than, fifteen (15) additional business days to review and process your request.” In its January 26, 2024 and February 6, 2024 responses, the School stated that it had “... alerted representatives from the Schools regarding this matter in an effort to resolve any outstanding issues regarding your December 25, 2023 public records request. I will provide an update to you once additional information is provided to me by the department.” Current Appeal In his appeal, Mr. Herman states, “[t]he responsive records were due by February 1, 2024. Today is February 3, 2024 — two days past the deadline -- but Boston Public Schools has failed to produce the responsive records nor have I heard anything further from Boston Public Schools. Accordingly, please order the City of Boston to produce the responsive records.” Provide timeframe G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Mr. Herman’s request was originally submitted on December 25, 2023 and the School has not provided responsive records, I find the School has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Accordingly, I find the School must provide an estimated date as to when it expects to complete its review and provide the requested records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable -- delay). To the extent possible, the School must provide responsive records on a rolling basis.

Shawn A. Williams, Esq. SPR24/0352 Page 3 February 20, 2024 Conclusion Accordingly, the School is ordered to provide Mr. Herman with a response to his 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. Mr. Herman may appeal the substantive nature of the School’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman