Chris Bruell v. Marblehead, Town of - Public Schools (SPR 20251539)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 11, 2025 SPR25/1539 Lisa Dimier Records Access Officer Marblehead Public Schools 9 Widger Road Marblehead, MA 01945 Dear Ms. Dimier: I have received the petition of Chris Bruell appealing the response of the Marblehead 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 April 2, 2025, Mr. Bruell requested: All email/written/phone/electronic message correspondence between members of the Marblehead School Committee or the committee as a whole and any other individual or entity, including but not limited to other members of the Marblehead School Committee, members of the community, school staff, administrators, and external organizations, from 9/1/2023 to 3/31/2025. Specifically, I request that the search for these records include correspondence that include the following terms: [1] “flag” and/or [2] “banner” and/or [3] “poster” and/or [4] “Pride” and/or [5] “rainbow” and/or [6] “gay” and/or [7] “lesbian” and/or [8] “trans” and/or [9] “BLM” and/or [10] “Black Lives Matter” and/or [11] “Shurtleff” 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

Lisa Dimier SPR25/1539 Page 2 June 11, 2025 The School acknowledged receipt of the request on April 3, 2025, and provided responses on April 16, 2025, April 22, 2025, May 9, 2025, May 22, 2025, and May 27, 2025. Unsatisfied with the School’s responses, Mr. Bruell petitioned this office and this appeal, SPR25/1533, 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. 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 April 16th, April 22nd, May 9th, May 22nd and May 27th Responses In its April 16, 2025 response, the School stated, “[d]ue to the amount of correspondence your request generated, we will be reviewing your request further so that we can provide a good faith estimate of the cost associated with completing your request. We are requesting a few additional days to respond to your request. We anticipate sending a response by the end of this week.” On April 22, 2025, the School sent a fee estimate of $245.42 for the request. On May 9, 2025, the School confirmed receipt of Mr. Bruell’s fee payment and stated, “… due to the volume of emails that require redaction, we are writing to inform you that we require an extension to respond to your request. We anticipate sending a response by the end of next week.” In its May 22, 2025 response, following an update inquiry from Mr. Bruell, the School stated, “[t]hank you for the followup and please excuse the oversight during this busy time of year with providing you another update. Due to the volume of your request and the number of redactions required, your request is taking longer than originally anticipated to complete. We are actively working on your request and do anticipate sending a few separate responses as we work through processing your entire request…”

Lisa Dimier SPR25/1539 Page 3 June 11, 2025 On May 27, 2025, following a second update inquiry from Mr. Bruell, the School provided responsive records and cited the attorney-client privilege, the Family Educational Rights and Privacy Act (FERPA) as it operates through Exemption (a), and Exemption (c) of the Public Records Law in support of the School’s redactions. The School also stated: Enclosed are documents responsive to your request. At this time, the District is sending a partial response… The District intends to produce all records responsive to your request, withholding only records and portions of records, if any, that do not constitute public records per the exemptions enumerated by the public records law or that are protected by other legally applicable privileges. If any such records or portions of records are eventually withheld by the District, the District will provide you with the specific reasons and exemptions upon which any withholdings are based. In the event the actual time to review and redact the requested records is less than the estimate provided, the District will refund a portion of your payment accordingly. Similarly, in the event the actual time to search for, compile, review, and redact the requested records is greater than the estimate provided, the District reserves the right to require you to pay an additional fee before releasing any responsive records. Mr. Bruell replied on May 28, 2025 and asked the School, “…is there any context to what you have sent me? It appears this covers the end of February through the end of March, so about 1/7 of the overall request? Is it fair to assume then that the estimated completion date of the full request will be sometime in August?” Current Appeal In his appeal petition, Mr. Bruell states, “[a]t this point I believe that an extraordinary amount of time has passed without receipt of the full request and I am asking for relief… we have an election for school committee positions coming up on June 10 and the community has the right to know whether or not we’ve been misinformed related to a very contentious flag policy that has been implemented by the committee.” It appears that Mr. Bruell is not appealing the School’s redactions to the responsive records under the attorney-client privilege nor under Exemptions (a) and (c) of the Public Records Law. Timeliness in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the

Lisa Dimier SPR25/1539 Page 4 June 11, 2025 public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Mr. Bruell’s request was submitted on April 2, 2025, and the School confirmed receipt of Mr. Bruell’s fee payment on May 9, 2025, and the School has not completed providing the responsive records, nor cited an exemption for withholding the remaining records, I find the School has not met its burden in responding to the request in a complete fashion in accordance with G. L. c. 66, § 10(b)(vi). Consequently, the School must provide an estimated date as to when it expects to complete its review and provide the remaining responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the School must continue to provide remaining responsive records on a rolling basis. Conclusion Accordingly, the School is ordered to provide Mr. Bruell 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. The requestor may appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Chris Bruell