Commonwealth Transparency v. Nahant, Town of - Public Schools (SPR 20241137)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2024 SPR24/1137 Anthony Pierantozzi Superintendent of Schools Nahant Public Schools 290 Castle Road Nahant, MA 01908 Dear Superintendent Pierantozzi: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of Nahant 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 April 6, 2024, the requestor sought the following: … for the time period January 1, 2018 through April 5, 2024: [1] Any and all contracts, communications, or documents of any kind with the following: [identified individuals and addresses;] [2] Any and all payments made to: [identified individuals and addresses; and] [3] Any and all conflict of interest documents for: [identified individuals and addresses.] This request includes but is not limited to email, email-attachments, text messages, calendar entries, voice mail messages and/or physical documents…. The School responded on April 16, 2024. Unsatisfied with the School’s response, the requestor petitioned this office and this appeal, SPR24/1137, 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, § 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). 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 Anthony Pierantozzi SPR24/1137 Page 2 April 30, 2024 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. Att’y 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 April 16th response In its April 16, 2024 response, the School asserted: The [School], after an electronic search has no records responsive to the…request. The [School] searched its email system for [the request] [and] [t]he [School]’s search generated no emails which may be responsive to your request. The [School] is not aware of any text messages responsive to your request. However, since the request is so vague and the search so limited, the [School] can only respond to the request without knowing what the requested documents reference. Therefore, [the School] has no responsive documents. Current Appeal The requestor alleges in the appeal that the School did not conduct a comprehensive search. The requestor states: The [School] states that they only searched emails, the specific request is for all documents, regardless of form, regardless of location, regardless of system/ format. The [School’s] response indicates that the request was “Vague,”… there [is no] reasonable excuse that the [records access officer] can muster that this search is too difficult….Wherefore, [the requestor] requests that the… [School] comprehensively search for and provide all responsive records without delay and without charge. Based upon a telephone conference between a staff attorney of the Public Records Division and a representative of the School, the School confirmed that there are no records responsive to this request. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to

Superintendent Anthony Pierantozzi SPR24/1137 Page 3 April 30, 2024 questions. See 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 does not possess records responsive to this request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If the requestor is unsatisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency