Martin Y. Benson v. Acton-Boxborough Regional School District (SPR 20240703)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 21, 2024 SPR24/0703 Andrew Shen Records Access Officer Acton-Boxborough Regional School District 15 Charter Road Acton, MA 01720 Dear Mr. Shen: I have received the petition of Martin Y. Benson appealing the response of the Acton- Boxborough Regional School District (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 21, 2021, Mr. Benson requested documents regarding the School Committee’s decision to retire the Colonial mascot. The following Items remain outstanding: [1.] Item #10 involves text messages to/from [an identified individual] and members of the ECARES Steering Committee, which was partially fulfilled but did not include a request to those staff members for texts between September 1, 2020 and January 21, 2021. [2.] ... names of former students (who are now alumni) identified in public records were redacted in emails that you have already received. [3.] ... additional text messages between [named] district staff and/or School Committee members that fall within the scope of your original request... Previous appeals The requested records were the subject of previous appeals. See SPR23/0114 Determination of the Supervisor of Records (February 10, 2023); SPR23/1124 Determination of the Supervisor of Records (June 13, 2023); and SPR23/2729 Determination of the Supervisor of Records (November 27, 2023). In my November 27th determination, it was my understanding that the School would provide a further response to Mr. Benson. The School responded on March 1, 2024. Unsatisfied with the response, Mr. Benson petitioned this office and this appeal, SPR24/0703, 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

Andrew Shen SPR24/0703 Page 2 March 21, 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 School’s March 1st Response In the School’s March 1, 2024 response, the School advised, “[b]ased on the Supervisor’s most recent ruling, we have chosen to move forward with collecting records that will complete the original portion of your request described in #10 and #11.” The School further stated: Item #10 involves text messages to/from ... and members of the ECARES Steering Committee, which was partially fulfilled but did not include a request to those staff members for texts between September 1, 2020 and January 21, 2021. To complete this request, we have reached out to the individuals listed above and asked them to produce text messages that meet the parameters of the request. Please note that [2 identified individuals] are no longer employed by the District. The remaining staff members listed above have responded that they have conducted a search of their respective phones with the following results: [1.] Included with this response are text messages from ... that meet the parameters of the request[;] [2.] Included with this response is a brief series of texts from ... that meet the parameters of the request[;] [3.] The remaining staff members noted above reported that they are not currently in possession of any text messages that meet the parameters of the request[.] Item #11 involves email messages to/from ... and members of the ECARES Steering Committee. The original response to your records had already provided you a significant number of records between and amongst the listed staff members. However, due to the expiration of time based on your original payment for records, a search was not conducted of emails between and amongst a smaller group of ECARES members.

Andrew Shen SPR24/0703 Page 3 March 21, 2024 To complete the above request, we conducted a search for emails to/from ... between September 1, 2020 and January 21, 2021. Attached please find the emails that are based on that search and similar to previous searches, did not include parent/student emails not regarding ECARES as they are exempt from public records request due to student privacy laws. Any redacted items within the emails provided to you are of student names and student email addresses. It is likely that a portion of the emails provided to you in this response overlap with email messages that were originally provided to you in response to Request #10, as there are similar recipients listed in both portions of the request. Current appeal In his appeal, Mr. Benson states, “... instead of providing a complete response, the District now argues that it is no longer in possession of these records despite significant evidence to the contrary.” Based upon Mr. Benson’s appeal, it appears Mr. Benson is only concerned with the records that the School advises that it does not have in its possession. Based upon a conversation between an attorney of the Public Records Division and the School, the School confirmed that all responsive records were produced. No Duty to Create Records Under the Public Records Law, the School is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Accordingly, where the School has confirmed that it has provided the requested records and does not possess additional records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Benson is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Martin Y. Benson