Ben Tobin v. Lenox, Town of - Public Schools (SPR 20243174)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2024 SPR24/3174 Melissa Falkowski Lenox Public Schools 6 Walker Street Lenox, MA 01240 Dear Ms. Falkowski: I have received the petition of Ben Tobin appealing the nonresponse of the Lenox Public Schools (School/District) 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 the following records: [1] I wrote to the superintendent asking about doing a PD on dyslexia and was given permission for a 90 min one. Looking for that exchange. [2] I had a meeting with [an identified individual] about concerns related to how [an identified individual] was treating me in the classroom…believe it was about two or three weeks ago and then we had a meeting. I would also like any notes from that meeting. [3] I am told an email was sent out by [an identified individual] around 10 Pm to much of the sped department on October 11th. I was not included. [4] Also looking for any emails or text messages pertaining to my PRS. [5] I am also looking to access a log I was keeping that’s in my google drive. It has a picture of a whiteboard on it and had entries from last week. Previous Appeal This request was the subject of a previous appeal. See SPR24/3070 Determination of the Supervisor of Records (November 21, 2024). In my November 21st Determination, I learned that the School provided Mr. Tobin with a response. The School responded on November 19, 2024. Unsatisfied with the response, Mr. Tobin petitioned this office and this appeal, SPR24/3174, 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

Melissa Falkowski SPR24/3174 Page 2 December 5, 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. Att’y 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 November 19th response In its November 19, 2024 response, the School provided records responsive to the request. The School states, “[e]nclosed at Tab 2 is the email exchange requested at item 1. With regard to item 2, there are no responsive documents in the District’s custody or control. With regard to item 3, the District performed a search and could not locate any responsive documents. With regard to item 4, I am unclear as to what you are requesting or what you mean by ‘my PRS.’ Could you please provide further detail? Finally, enclosed at Tab 3 is the responsive document that was located.” Current appeal In his appeal petition, Mr. Tobin states, “the district has not yet produced the requested MTSS exemplar provided to staff [at a] staff meeting in October. I am also still awaiting the requested text messages. I am requesting any and all text messages from the three numbers … not just messages connected with my case but any text messages sent during the noted duration. One of the emails is also missing from October 11th … I am told it was sent to special education staff around 10 p.m. at night. The district also here provided procedures but I don’t see the necessary policies … or if there are policies they are not identified as such.” Based on Mr. Tobin’s petition, it is unclear if the School possesses any additional records responsive to the request. 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). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired

Melissa Falkowski SPR24/3174 Page 3 December 5, 2024 information. See 950 C.M.R. 32.04(5). Consequently, the School must clarify whether additional records exist. Conclusion Accordingly, the School is ordered to provide Mr. Tobin with a response to his 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: Ben Tobin