Joan P. Beckta v. Everett, City of - Public Schools (SPR 20242239)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 21, 2024 SPR24/2239 David O’Connor Records Access Officer Everett Public Schools 121 Vine Street Everett, MA 02149 Dear Mr. O’Connor: I have received the petition of Joan P. Beckta appealing the response of the Everett 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 June 26, 2024, Ms. Beckta requested, “[t]he resumes of the five (5) candidates for Superintendent of Schools who made it to the 2nd round of interviews.” The School provided a response on July 23, 2024. Unsatisfied with the School’s response, Ms. Beckta petitioned this office and this appeal, SPR24/2239, 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(d)(iv) (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…”); 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). If there are any fees associated with a response a written, good faith estimate must be 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

David O’Connor SPR24/2239 Page 2 August 21, 2024 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 July 23rd Response In its July 23, 2024 response, the School advises that it is providing Ms. Beckta with two of the responsive resumes and claims Exemption (a) of the Public Records Law to withhold the remaining resumes in their entirety. Specifically, the School states: With the exception of the resumes of the two finalist candidates for superintendent which are being produced herewith, the requested records are not public records. The names and identifying details of candidates considered during the prescreening process is confidential under Gen. L. c. 214 §1B (privacy rights) and exemption 7 of the Open Meeting Law (to comply with provisions of any general or special law). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 3 77 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 214, § 1B, the Privacy Statute G. L. c. 214, § 1B, known as the Privacy Statute, provides:

David O’Connor SPR24/2239 Page 3 August 21, 2024 A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages. G. L. c. 214, § 1B. This statute does not specifically, nor by implication, exempt any particular records from disclosure; therefore, this statute does not operate under Exemption (a) for the withholding of records or information responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § 1B provides no alternative legal basis to resist inspection of requested materials). Therefore, this statute does not allow for the withholding of the requested records. Open Meeting Law The School’s response raises issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office, I decline to address this matter in this determination. See G. L. c. 30A, § 23. I encourage the parties to contact the Office of the Attorney General for a determination on the status of the responsive resumes withheld under the Open Meeting Law. Current appeal In her appeal, Ms. Beckta states that she “[wishes] to appeal the answer [she] got to [her] public records request” where she does not “see why the resumes of other three semi-finalists are not public record, since the Super was chosen last year.” Ms. Beckta further claims that she did not receive any responsive resumes from the School despite its indication that it provided “resumes of the two finalist candidates for superintendent” with its July 23rd response. Based on the School’s response, in conjunction with Ms. Beckta’s appeal petition, it is unclear whether the School provided Ms. Beckta “the resumes of the two finalist candidates for superintendent[.]” 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). The School must clarify. Conclusion Accordingly, the School is ordered to provide Ms. Beckta with a response to her 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. Ms. Beckta may appeal the substantive nature of the School’s response within 90 calendar days. See 950 C.M.R. 32.08(1).

David O’Connor SPR24/2239 Page 4 August 21, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Joan P. Beckta