Commonwealth Transparency v. Tri-Town School Union (SPR 20241315)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 14, 2024 SPR24/1315 Brian Middleton-Cox Director of Human Resources Tri-Town School Union 28 Middleton Road Boxford, MA 01921 Dear Mr. Middleton Cox: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the Tri-Town School Union (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;] [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 email messages and/or physical documents. The School responded on April 9, 2024. Unsatisfied with the School’s response, the requestor petitioned this office and this appeal, SPR24/1315, was opened as a result. Subsequently, the School provided a supplemental response on May 1, 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). 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

Brian Middleton-Cox SPR24/1315 Page 2 May 14, 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 9th and May 1st responses In its April 9, 2024 response, the School asserted, “[t]he [School] performed a diligent search of our records upon receipt of your request. The [School] is not in possession of any records responsive to your request.” On May 1, 2024, the School restated its April 9th response. 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 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 possesses any records responsive to requestor’s 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