Malden News Network v. Mystic Valley Regional Charter School (SPR 20242878)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 1, 2024 SPR24/2878 Richard Veilleux Assistant Superintendent, Finance and Operations Mystic Valley Regional Charter School 4 Laurel Street Malden, MA 02148 Dear Mr. Veilleux: I have received the petition of Brian DeLacey, of Malden News Network, appealing the response of the Mystic Valley Regional Charter School (School/MVRCS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 7, 2024, Mr. DeLacey requested the following: [A]ll records from the date case #2384CV01732 was initiated to the date of this request which could be characterized as the following: 1) invoices received, even if unpaid, and, separately, payments made (as evidenced by check payments, wire transfer or other common records of payment) or pro bono services received involving any individual, consultant, business, firm, corporation, educational institution, organization, service provider, expert or any other entity involved with the court case “2384CV01732 Andrea Joy Campbell, Attorney General vs. Mystic Valley Regional Charter School”; 2) communications exchanged (e.g. email and attachments) with DESE in relation to activities or expenses of #2384CV01732; 3) documentation of obligations and actions taken under 950-cmr-32.04(1) (2) (3) and (4), such as any designation or appointment of Records Access Officer/s and any notice you have posted “in a conspicuous location at [MVRCS] offices and on its website, if any, the name, title, business address, business telephone number, and business email address of each records access officer.” The School responded on October 18, 2024. Unsatisfied with the School’s response, Mr. DeLacey petitioned this office, and this appeal, SPR24/2878, was opened as a result. 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

Richard Veilleux SPR24/2878 Page 2 November 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). 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. The School’s October 18th Response In its October 18, 2024 response, an attorney for the School claims that the School is not subject to the Public Records Law, and also “objects” to Mr. DeLacey’s request. Duty to Respond In its October 18th response, the School argues the following: [W]hile you cite to a recent decision of a Massachusetts trial court, we know of no Massachusetts appellate court decision holding that Massachusetts charter schools are subject to the Public Records statute. Until there is a final judgment with all rights of appeal exhausted, holding that the School is subject to the Public Records statute, including necessarily finding that the School is a “state agency” and/or a “political subdivision,” Mystic Valley will continue to take the position that the statue [sic] does not apply to commonwealth charter schools to preserve its appellate rights. The School is advised that the Attorney General’s Office (AGO) has previously found “that the School is a public entity subject to the Public Records Law” and has previously directed the School to respond to public records requests. See AGO letter dated October 20, 2022. Further, the Suffolk County Superior Court has previously declared “that MVRCS is a custodian of public records, is subject to the Public Records Law, and must respond to public records requests pursuant to G. L. c. 66, § 10.” See Andrea Joy Campbell v. Mystic Valley

Richard Veilleux SPR24/2878 Page 3 November 1, 2024 Regional Charter School, Suffolk Superior Court Docket No. 2384-CV-01732 (October 4, 2024). Burden of Specificity; Reasonable Description of the Records In its October 18th response, the School also argues the following: Even if the School were subject to the Public Records statute, it objects to [Mr. DeLacey’s] requests on the following additional bases: • The requested records may be protected by various privileges, including but not limited to, the attorney-client and work product privileges; • The first and third request are confusing and unintelligible and, therefore, do not reasonably describes the public records sought; • The requests are overly broad and unduly burdensome, and issued for the purpose of harassment; • There is no arrangements to pay a reasonable fee for the search and production of requested documents; • The requested records may be specifically or by necessary implication exempted from disclosure by statute; • The requested records may relate solely to internal personnel rules and practices; • The requested records may contain personnel information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; and • The requested records may contain School memoranda or letters relating to policy positions being developed by the School. The School’s October 18th 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 response, it is unclear which exemptions the School is claiming in order to withhold the requested records. The School must identify the responsive records in its possession, custody or control, and explain with specificity how any exemption of the Public Records Law applies to withhold or redact the 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla v. Dept of Revenue, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees

Richard Veilleux SPR24/2878 Page 4 November 1, 2024 will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” In this case, Mr. DeLacey has provided specific descriptions of the types of records he seeks, described examples of records that would be responsive to his request, and provided a docket number along with a date range. While his request may result in a large volume of responsive records, Mr. DeLacey has provided the sufficient particularity required to identify the documents he is seeking. Conclusion Accordingly, the School is ordered to provide Mr. DeLacey 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: Brian DeLacey Charles M. Waters, Esq.