Anne L. Gero v. Hamilton-Wenham Regional School District (SPR 20240589)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 8, 2024 SPR24/0589 Eric Tracy Superintendent of Schools Records Access Officer Hamilton Wenham Regional School District 5 School Street Wenham, MA 01984 Dear Superintendent Tracy: I have received the petition of Anne L. Gero appealing the response of the Hamilton Wenham Regional School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 5, 2024, Ms. Gero requested the following records “relating to the proposed athletic field improvement project (the Project) at the Hamilton Wenham high school/middle school”[:] [1.] All public records setting forth the current draft of the bid plans, specifications, and form of contract for the Project. [2.] All public records setting forth current budget estimates for the Project, including any detailed cost breakdowns. [3.] All public records setting forth the current schedule for the bidding and construction of the Project. [4.] All public records setting forth one or more individuals and/or organizations that have contributed/pledged private funds for the Project, and the terms of such contributions/pledges. [5.] All public records describing or setting forth the maintenance undertaken for the playing fields at the School, including what specific activities were undertaken and the cost thereof, including copies of contracts with service providers and/or suppliers. This request is for the current and previous two school years. The District responded on February 15, 2024. Unsatisfied with the response, Ms. Gero petitioned this office and this appeal, SPR24/0589, was opened as a result. 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

Eric Tracy SPR24/0589 Page 2 March 8, 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. The District’s February 15th Response In the District’s February 15, 2024 response, the District responded to each Item as follows: [1.] There are no documents responsive to your request. [2.] This can be found on the Project website ... [3.] This can be found on the Project website ... [4.] There is a private group that manages the donations. It is not a District group. However, the Edfund has publicly granted the district $500,000.00 toward the Project. [5.] Maintenance records are not broken out specifically for the fields, they are included in the districtwide landscaping costs. Current appeal In her appeal, Ms. Gero advised that she is appealing the responses to Items 1, 2, and 3. With regard to Item 1, Ms. Gero stated as the project is about to be bid, “it doesn’t make sense that there are no bid documents.” With regard to Item 2, Ms. Gero advised, “[i]t’s incredulous that the District could be about to put a $15 million project out to bid without a cost estimate that is more detailed and up to date than merely ‘approximately $15 million’.” With regard to Item 3, Ms. Gero advised, “[i]t seems implausible that the District has not updated its project schedule since 9/4/23...” Based on Ms. Gero’s appeal, in conjunction with the District’s response, it is unclear if the District possesses any additional records responsive to her request. 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). However, custodians are expected to use their superior knowledge of the records in their custody

Eric Tracy SPR24/0589 Page 3 March 8, 2024 to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the District must clarify if additional records exist. Conclusion Accordingly, the District is ordered to provide Ms. Gero 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. Gero may appeal the substantive nature of the District’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Anne L. Gero