Tj Kelly v. Malden, City of - Public Schools (SPR 20251956)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 21, 2025 SPR25/1956 Pamela MacDonald Assistant Superintendent for Student Services Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Ms. MacDonald: I have received the petition of TJ Kelly appealing the response of the Malden 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 May 28, 2025, TJ Kelly requested, “…all hallway video footage from Forestdale School (Floor 2, Wing C) showing the times [an identified individual] was pulled for math and spelling services as outlined in her IEP… from April 28, 2025, through May 27, 2025.” The School responded on May 30, 2025, June 4, 2025, June 13, 2025 and June 24, 2025. Unsatisfied with the School’s responses, TJ Kelly petitioned this office and this appeal, SPR25/1956, was opened as a result. While this appeal was pending, the School provided supplemental responses on July 13, 2025, July 17, 2025, and July 18, 2025. 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

Pamela MacDonald SPR25/1956 Page 2 July 21, 2025 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. Status of the Requestor; Reason for the Request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, TJ Kelly’s interest in obtaining the records shall have no bearing on the public status of the responsive records. The School’s May 30th, June 4th, June 13th, and June 24th Responses In its May 30, 2025 response, the School stated, “[i]n response to your request for hallway video, for 4/28/25 – 5/29/25, no such video exists as the students’ spelling and math are delivered in the general education classroom.” In reply to the School on the same day, TJ Kelly stated, “the district’s assertion that no video exists… is false… Cameras are installed in that hallway, and I am explicitly request[ing] access to video footage from that precise location during the time period of April 28 through May 30, 2025 (updated to reflect the date this communication).” In a follow-up email on June 2, 2025, TJ Kelly stated, “I am again formally requesting video surveillance from the second floor, C wing hallway, for the time period previously outlined (to include the date of this communication 6/2/25).” On June 4, 2025, the School responded, “please be advised that the district will treat your request as a public record request pursuant to the Massachusetts Public Records Law and provide you with a response accordingly within ten business days of your request. Please note that video is only maintained for thirty days. Kindly clarify the time of day, if any, that you are requesting.” In reply to the School on June 5, 2025, TJ Kelly modified his request as follows: I am specifically requesting footage from the second floor, C-wing hallway – focusing on the area near the end table under the window – covering the period from Monday, March 17, 2025 through Wednesday, June 4, 2025. The requested daily time window for this footage is from 12:30 PM to 1:30 PM. On June 13, 2025, following two update inquiries from TJ Kelly, the School provided a fee estimate of $212.50 to produce the responsive records, subject to redactions under Exemptions (a) and (c) of the Public Records Law. TJ Kelly subsequently paid the fee estimate via hand-delivered check on June 16, 2025.

Pamela MacDonald SPR25/1956 Page 3 July 21, 2025 After a further follow-up from TJ Kelly, the School responded on June 24, 2025, “[t]he district provided you with a response to your public record request within ten business days. Upon receipt of your payment, [an identified individual] reviewed and compiled the video footage you requested. He completed that review yesterday and will be reaching out to you to set up a time for you to view the footage.” Current Appeal In his appeal petition, TJ Kelly stated, “[d]ue to the district’s delay in acknowledging and providing the footage, several — if not all — of the relevant dates included in my request have now been lost, rendering it impossible to view the video evidence that was central to my concerns… The failure to act on it in a timely and truthful manner has caused significant harm.” In a telephone conversation with this office on July 11, 2025, an attorney for the School stated that the School initially understood the request to be a student record request and not a public records request. The attorney also confirmed that the School’s video camera footage is only retained for 30 days. In a supplemental response on July 13, 2025, a School official stated, “I was able to spend some time compiling footage responsive to your request, and was asked to connect with you to find a time to come in and view the footage… Let me know what works best…” On July 17, 2025, an attorney for the School argued that TJ Kelly’s initial request on May 28, 2025 was a student record request and not a public records request because, “[t]he request pertained specifically to the requestor’s daughter[.]” The School’s attorney argued further that because the School did not receive TJ Kelly’s public records request until June 2, 2025, which was modified on June 5, 2025, the School’s June 13th response was timely. On July 18, 2025, both parties confirmed that TJ Kelly met with the School to view the responsive video camera footage. Following the meeting, TJ Kelly argued, “[d]ue to the delay, [the School] was unable to save data prior to May 5, 2025 (I had requested the start date to be March 17, 2025). I would request a letter from your Office for my file showing the district was in noncompliance with state public information request and allotted time to respond to such a request, thus losing critical data.” Records Management 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. See G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). For further guidance in records management and retention, the School may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request.

Pamela MacDonald SPR25/1956 Page 4 July 21, 2025 Safeguards must be instituted by the School to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. See G. L. c. 66, § 8; G. L. c. 66, § 13 and G. L. c. 66, § 15. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Further, 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). Conclusion Given that part of requested record no longer exists and this office has no authority to compel the School to create a record, I will now consider this administrative appeal closed. If TJ Kelly 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 of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: TJ Kelly