Megan Hamilton-McKeon v. Scituate, Town of - Public Schools (SPR 20240503)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 29, 2024 SPR24/0503 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…” Additionally, on January 25, 2024, Ms. Hamilton-McKeon reiterated her January 9th request and added that she is also seeking the following; [1.] In the September 22, 2018 email from [a named individual] to [a named individual] it reads “...issues raised in the email were investigated...”. Please send all investigation records. [2.] The April 23, 2020 email from [a named individual] to [a named individual] reads “Could you let me know if you will respond to this teacher or if you would like the SC to investigate and respond”. Please send [a named individual]’s response to [a named individual] and any School Committee investigation records. [3.] The April 23, 2020 email from [a named individual] to [a named individual] reads “...is it being investigated by Administration...”. Please send [a named individual]’s response to [a named individual]. [4.] The April 24, 2020 email to [a named individual] reads “community member received a response”. Please send this response. It goes on to include “[a named individual] looked into her concerns ... evidence to substantiate...”. Please send the evidence referenced. On February 2, 2024, Ms. Hamilton-McKeon further added to her request and sought the following: 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 SPR24/0503 Page 2 February 29, 2024 [5.] I request electronic copies of emails within the date range of August 1, 2018 to January 1, 2019 from or to . . . at mhamiltonmckeon@scit.org. [6.] Also requested are emails amongst [named administrators] and History Department Director and School Resource Officer(s) regarding . . . [7.] Additionally requested are all notes, records, documents, correspondence, reports, video tapes, audiotapes, interviews or emails concerning or relating to anything leading to dismissal. Previous Appeal Ms. Hamilton-McKeon’s January 9th request was the subject of a previous appeal. See SPR24/0224 Determination of the Supervisor of Records (February 6, 2024). In my February 6th determination, I found that the School did not possess additional records responsive to the January 9th request, and closed the appeal. The School provided a response on February 8, 2024. Unsatisfied with the School’s response, Ms. Hamilton-McKeon petitioned this office and this appeal, SPR24/0503, 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. 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 February 8th Response In its February 8, 2024 response, the School stated: On January 25, 2024, [the School] provided you with a response to your request

Superintendent William E. Burkhead SPR24/0503 Page 3 February 29, 2024 for records and appeal in SPR24/0224. As noted in that response, we provided you with all emails we had located related to you up to that point, and we explained that we were unable to locate any personnel file for you after a diligent search, but we did provide a copy of your resume that we located. In response to your follow up requests, [the School] has not located any additional personnel/investigation documents responsive to [the January 9th request and] numbers [1], [2], [4], or [7]. [The School] has not located any additional emails responsive to numbers [3] or [6]. With respect to [request 5], [the School] did locate an email account for you after you provided that specific information, and we have begun preparing the emails therein for production to you. An initial response to that request, received February 2, is due within 10 business days of [the School]’s receipt. As such, a full response to number 6 will be provided on or before February 16. Subsequent to the opening of this appeal, in an email sent on February 15, 2024, the School sent Ms. Hamilton-McKeon records and stated, “[the School] supplemented its response to the request in this matter… on 2/14, which was sent after the appeal on 2/13 but prior to this notice from the Supervisor on 2/15. At this time, [the School] has provided all responsive records located in its searches except as specifically identified/redacted in its responses.” Current appeal In her appeal, Ms. Hamilton-McKeon states, “[t]he basis as to what is at issue(s) regarding the request sent is that accessing the records, especially the emails between Administrators and notes, etc. leading to dismissal, is necessary regarding the complaint brought and a Massachusetts Commission Against Discrimination Written Hearing.” 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. Att’y Gen. 157, 165 (May 18, 1977). Conclusion Where the School has confirmed that it does not possess any additional records responsive to the requests, 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).

Superintendent William E. Burkhead SPR24/0503 Page 4 February 29, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Megan Hamilton-McKeon