Carey Goldberg v. Brookline, Town of - Public Schools (SPR 20242164)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 13, 2024 SPR24/2164 Kathleen Davock Executive Assistant to the Superintendent Brookline Public Schools 333 Washington Street, 5th Floor Brookline, MA 02445 Dear Ms. Davock: I have received the petition of Carey Goldberg appealing the response of the Brookline 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 May 29, 2024, Ms. Goldberg requested the following: [C]opies of any and all texts, emails, and other written correspondence to or from [the] Brookline Public Schools Superintendent ... pertaining to or relating in any way to the written statements that were published or caused to be published by or on behalf of [the] Superintendent ... from Oct. 7 through Oct. 14, 2023, in response to and following the October 7, 2023 Hamas attack on Israel. Previous Appeal This request was the subject of a previous appeal. See SPR24/1811 Determination of the Supervisor of Records (July 5, 2024). In my July 5th determination, I ordered the Town of Brookline to provide Ms. Goldberg with a written response to her request. Subsequently, the School responded on July 25, 2024, providing a responsive record in redacted form. Unsatisfied with the School’s response, Ms. Goldberg petitioned this office, and this appeal, SPR24/2164, 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 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

Kathleen Davock SPR24/2164 Page 2 August 13, 2024 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. 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. Current Appeal In her appeal petition, Ms. Goldberg contends “that there are other relevant emails.” Among other things, she also contends that the School’s response “fails to ... provide the specific reason for withholding/redacting portions of the one record that was provided.” The School’s July 5th Response In its July 5, 2024 response, the School provides one responsive email in redacted form. Burden of specificity In this case, the School’s response did not contain the specificity required in a denial of access to public records. Under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. Based on the School’s July 5th response, it is unclear which exemption or exemptions the School is citing in order to redact or withhold the requested records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Records in Existence; Possession, Custody, or Control Please be advised that 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). Further, in accordance with the Public Records Law, 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).

Kathleen Davock SPR24/2164 Page 3 August 13, 2024 Based on the responsive email provided by the School, and the information provided in Ms. Goldberg’s appeal petition, it is unclear whether the School possesses additional records responsive to the request. If the School does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv). Conclusion Accordingly, the School is ordered to provide Ms. Goldberg 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. Sincerely, Manza Arthur Supervisor of Records cc: Carey Goldberg