Megan Hamilton-McKeon v. Old Rochester Regional School District (SPR 20241803)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 2, 2024 SPR24/1803 Michael S. Nelson Superintendent Old Rochester Regional School District 135 Marion Road Mattapoisett, MA 02739 Dear Superintendent Nelson: I have received the petition of Megan Hamilton-McKeon appealing the response of the Old Rochester Regional School District (School/District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 12, 2024, Ms. Hamilton-McKeon requested “[her] email records and specifically those that are to and from people, etc. regarding sexual harassment and harassment.” The School provided a response on June 18, 2024. Unsatisfied with the response, Ms. Hamilton-McKeon petitioned this office and this appeal, SPR24/1803, 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). 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. 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 Michael S. Nelson SPR24/1803 Page 2 July 2, 2024 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 June 18th Response In its June 18, 2024 response, the School provided records and stated, “the District does not have access to any archived emails on the MEC server. To the best of the District’s knowledge, MEC emails were archived by an outside vendor for up to seven years and therefore the District no longer has access to these records, and they do not exist as they are over seven years old.” Current appeal In her appeal, Ms. Hamilton-McKeon states, “[i]n addition to the archived emails which should be saved due to the ongoing nature of legal cases, etc., the emails accessible by law that include a plethora of ‘mec’ emails are accessible as it was only in my last year of tenure that the email address and system was changed. Additionally, the vendor of archive is not included. What is included was emailed after the 10 day timeframe by quite some time and is missing portions such as at the bottom of pages. Emails to and from people, etc. regarding sexual harassment and harassment are missing. Other people in the mec and “org” system who include sexual harassment and harassment are missing. Additionally, I consider most of the Administrative emails to me at the end of my tenure as both sexual harassment and harassment, etc. These must be included.” 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). In light of the School’s response and Ms. Hamilton-McKeon’s appeal petition, I find it is unclear if the School possesses additional records responsive to her request. This office encourages Ms. Hamilton-McKeon and the School to continue communicating to facilitate providing any remaining records. Where the School states that “[t]o the best of the District’s knowledge, MEC emails were archived by an outside vendor for up to seven years and therefore the District no longer has access to these records, and they do not exist as they are over seven years old[,]” I find that the School must demonstrate whether it followed proper records retention protocol. The School must clarify this matter. Conclusion Accordingly, the School is ordered to provide Ms. Hamilton-McKeon with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this

Superintendent Michael S. Nelson SPR24/1803 Page 3 July 2, 2024 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Megan Hamilton-McKeon