Alexa Podalsky v. Brockton, City of - Public Schools (SPR 20240866)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 4, 2024 SPR24/0866 Bou Lim Record Access Officer Brockton Public Schools 43 Crescent Street Brockton, MA 02301 Dear Mr. Lim: I have received the petition of Alexa Podalsky appealing the response of the Brockton 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 February 14, 2024, Ms. Podalsky requested, “…any and all concussion date from 2019 to the present day with any necessary information redacted to protect student identities . . . . We would also like for [records] to include any ethnic or race data and other details, including the sport they played or how they sustained the concussion. Any extra details you can give would be greatly appreciated.” The School responded on February 26, 2024, February 27, 2024, March 1, 2024 and March 20, 2024. Unsatisfied with the School’s responses, Ms. Podalsky petitioned this office and this appeal, SPR24/0866 was opened as a result. Subsequently, the School provided a supplemental response on March 22, 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 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

Bou Lim SPR24/0866 Page 2 April 4, 2024 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 20th, February 21st, March 1st, March 20th and March 22nd responses In its February 26, 2024 response, the School asserted “[t]he most recent data I would be able to provide you is 2022-2024.” Ms. Podalsky inquired as to the lack of records prior to 2022. In its February 27, 2024 response, the School asserted “I was not at the school prior to 2022. If records were kept, I do not know where they are.… I am unsure where they kept all of their files.” On March 1, 2024, the School asserted “…I am respectfully declining [to send records]. I initially replied due to you stating there needed to be a response to your request.” On March 20, 2024, the School further asserted “I have already responded to your request.” In its March 22, 2024 response, the School asserted, “I confirm that [the School] is in receipt of your request. I am in contact with responsible staff to gather relevant information and will respond to your request accordingly.” Based on Ms. Podalsky’s claims, in conjunction with the School’s response, it is unclear if the School possesses any 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 to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the School must clarify if the requested records exist. Conclusion Accordingly, the School is ordered to provide Ms. Podalsky with a response to her 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. Podalsky 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: Alexa Podalsky