Ben Tobin v. Lenox, Town of - Public Schools (SPR 20242956)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 13, 2024 SPR24/2956 Melissa Falkowski Assistant Superintendent of Business & Operations Lenox Public Schools 6 Walker Street Lenox, MA 01240 Dear Ms. Falkowski: I have received the petition of Ben Tobin appealing the response of the Lenox 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 October 23, 2024, Mr. Tobin requested, “electronic copies of the special education policies and procedures outlines in the state and federal regs… Preferably PDF.” The School responded on October 29, 2024. Unsatisfied with the response, Mr. Tobin petitioned this office and this appeal, SPR24/2956, 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

Melissa Falkowski SPR24/2956 Page 2 November 13, 2024 The School’s October 29th Response In its October 29, 2024 response, the School stated, “[t]he policies and procedure documents are housed in the Special Education office and they can be made available to you during the hours of the school day (8:30am-3:15pm) Monday through Friday (with the exception of Holidays and vacation weeks). Please contact… the Administrative Assistant of the Special Education department at 413-637-5570 to arrange a viewing.” Current appeal In his appeal, Mr. Tobin states, “[t]he special education policies and procedures (which they did not have in 2021 when I did a records request) are a requirement per the federal law (which also states that they must be readily available to the public). I have near every district’s policies at this point and so this district not making their policies accessible is an issue. For example, they are not accessible to the visually impaired and if the public happens to not be able to commute to the school.” Access to Records The School is advised that Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Additionally, in accordance with 950 C.M.R. 32.06(1)(e), “a person shall not be required to make a personal inspection of the record prior to receiving a copy.” Where the School has restricted access to the responsive records by requiring that Mr. Tobin review the records in person, I find that the School has not met its burden in responding to this request. Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In light of Mr. Tobin’s appeal, I find the School must clarify whether the responsive records can be provided in the PDF format as requested by Mr. Tobin. The School must clarify this matter.

Melissa Falkowski SPR24/2956 Page 3 November 13, 2024 Conclusion Accordingly, the School is ordered to provide Mr. Tobin with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Ben Tobin