Joseph Considine v. Westborough, Town of - Public Schools (SPR 20243351)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 23, 2024 SPR24/3351 Daniel Mayer Assistant Superintendent Records Access Officer Westborough Public Schools 45 W Main Street Westborough, MA 01581 Dear Assistant Superintendent Mayer: I have received the petition of Joe Considine appealing the response of the Westborough 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 November 15, 2024, Mr. Considine requested the following records: [1] A list and number of non-teaching administrative positions employed by Westborough for the past 20 years. Has this grown substantially? Please include a chart showing this growth over the past 20 years. I advocate for removal of administrative positions before reducing any teaching positions. [2] A complete accounting of potential savings if the Town eliminated the Position of Assistant School Superintendent. Please include all costs for the current year as well as expected pension costs for the life of the person holding this position. I have nothing against the person currently holding this position, but it stands as an example of a way the School Department could cut costs. The School responded on December 2, 2024. Unsatisfied with the School’s response, Mr. Considine petitioned this office and this appeal, SPR24/3351, 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

Assistant Superintendent Daniel Mayer SPR24/3351 Page 2 December 23, 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. The School’s December 2nd response In its December 2, 2024 response, the School stated, “[t]he District does not possess documents responsive to your request, and would need to create such documents.” The District further advised, notwithstanding this, solely because this information is readily accessible at this time and in the interest of transparency, the District will share the following with you: [1] There are about 725 employees working during the school day (this does not include coaches, substitutes, temporary staff, or members of the community education program) and 36 non-teaching administrator positions ... [2] The highest teacher salary is $113,164 and the Assistant Superintendent’s salary is $182,888. Teachers work 184 days a year while the Assistant Superintendent works year round. [3] The town pays $0 toward the pensions of administrators. Current appeal In his appeal Mr. Considine states, “[t]he School’s response does not answer how the number of nonteaching administrative positions employed by Westborough have grown the past 20 years and all costs for the current year as well as expected pension costs for the life of the person holding the position of Assistant School Superintendent.” No Duty to Create Records Under the Public Records Law, the School is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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).

Assistant Superintendent Daniel Mayer SPR24/3351 Page 3 December 23, 2024 Conclusion Where the School advised that it does not possess records responsive to Mr. Considine’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Considine is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Joe Considine