Commonwealth Transparency v. Burlington, Town of - Public Schools (SPR 20241356)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 17, 2024 SPR24/1356 Theresa O’Meara Confidential Secretary to the Superintendent Burlington Public Schools 123 Cambridge Street Burlington, MA 01803 Dear Ms. O’Meara: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the Burlington 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;] [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 May 2, 2024. Unsatisfied with the School’s response, the requestor petitioned this office and this appeal, SPR24/1356, 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

Theresa O’Meara SPR24/1356 Page 2 May 17, 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 May 2nd response In its May 2, 2024 response, the School provided responsive records and asserted, “[t]he [School] has only conducted business with [an identified individual]. Attached are the payment history, associated invoices and engagement letters in response to your request: [itemized list of responsive records.]” Current Appeal In the appeal, the requestor stated: [1] The response/responsive documents did not include any contracts, nor any statement(s) that the School/Town did not possess any contracts. [2] The response/responsive documents did not include any communications, nor any statement(s) that the School/Town did not possess any communications, emails, text messages, etc. Based on the requestor’s claims, in conjunction with the School’s response, it is unclear if the School possesses any contracts or additional communications responsive to the 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 additional records exist. Further in the petition, the requestor states “[t]he response/responsive documents did not include any response from the [Town of Burlington (Town)], only the Schools, nor any statement(s) that the Town did not possess any responsive records. Please be advised, a requestor may petition the Supervisor of Records only after a written request has been made to the records access officer (RAO) of the governmental entity that creates or receives the records. 950 C.M.R. 32.08(1)(a). Further, 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).

Theresa O’Meara SPR24/1356 Page 3 May 17, 2024 Where the requestor submitted a request to the School’s RAO, and the School has responded, I find that the School has met its burden in responding to this request and has no duty to forward such request to the Town as the Town’s has its own separate records access officer. The requestor may wish to submit a new request to the Town for the records they are seeking. If the requestor is unsatisfied with the Town’s response, they may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). Conclusion Accordingly, the School is ordered to provide the requestor 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. The requestor may appeal the School’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency