John McDonnell v. Andover, Town of - Public Schools (SPR 20252711)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 25, 2025 SPR25/2711 Nicole L. Kieser Records Access Officer Director of Communications Andover Public Schools 30 Whittier Court Andover, MA 01810 Dear Ms. Kieser: I have received the petition of John McDonnell, Esq., appealing the response of the Andover 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 6, 2025, Attorney McDonnell requested fifty-four categories of records from the School including documents related to the redistricting process, the engagement of the consultant for redistricting, and various e-mail communications. Previous Petition and Appeal This request was the subject of a previous appeal by Attorney McDonnell and a previous petition from the School. See SPR25/1322 Determination of the Supervisor of Records (May 14, 2025) and SPR25/2425 Determination of the Supervisor of Records (August 29, 2025). In my May 14th determination, I found that the School may assess a fee for segregation and redaction of the responsive records under Exemptions (c) and (o) of the Public Records Law. In my August 29th determination, I found that it was unnecessary to opine on the School’s assessed fee, that I was unable to opine on the School’s proposed redactions, and that it was unclear whether the records of the School’s agents had been searched. The School responded on September 12, 2025. Unsatisfied with the School’s response, Attorney McDonnell petitioned this office, and this appeal, SPR25/2711, 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 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

Nicole L. Kieser SPR25/2711 Page 2 September 25, 2025 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 September 12th Response In its September 12, 2025 response, the School stated that it had not searched the records of its consultant, Dillinger Research and Applied Data (DillingerRAD). The School further stated that it was not obligated to do so. The School provided excerpts of its contract with DillingerRAD which expressly disclaimed any agency relationship and required that DillingerRAD maintain its records in a confidential manner. Current Appeal In his September 15, 2025 petition to this office, Attorney McDonnell stated “… these records were gathered as a substitute for public input at open public meetings. These are clearly public records that must be produced without redactions.” Attorney McDonnell did not appear to object to the School’s assessed fee. In its September 19, 2025 email communication to this office, the School clarified that records responsive to Item 22 of the request were in the sole custody of DillingerRAD. In a September 19, 2025 email communication to this office, Attorney McDonnell provided a full copy of the School’s contract with DillingerRAD. The contract provides in pertinent part: 19. Documents, Materials. Etc. Any materials, reports, information, data, etc. given to or prepared or assembled by the Contractor under this Contract are to be kept confidential and shall not be made available to any individual or organization by the Contractor ( except agents, servants, or employees of the Contractor) without the prior written approval of the Town, except as otherwise required by law. The Contractor shall comply with the provisions of Chapter 66 and Chapter 66A of the General Laws

Nicole L. Kieser SPR25/2711 Page 3 September 25, 2025 of Massachusetts as they relates to public documents, and all other state and federal laws and regulations relating to confidentiality, security, privacy and use of confidential data. Any materials produced in whole or in part under this Contract shall not be subject to copyright, except by the Town, in the United States or any other country. The Town shall have unrestricted authority to, without payment of any royalty, commission, or additional fee of any type or nature, publicly disclose, reproduce, distribute and otherwise use, and authorize others to use, in whole or in part, any reports, data or other materials prepared under this Contract. All data, reports, programs, software, equipment, furnishings, and any other documentation or product paid for by the Town shall vest in the Town. The Contractor shall at all times, during or after termination of this Contract, obtain the prior written approval of the Town before making any statement bearing on the work performed or data collected under this Contract to the press or issues any material for publication through any medium … 21. Record-Keeping and Retention, Inspection of Records The Contractor shall maintain records, books, files and other data as specified in this Contract and in such detail as shall properly substantiate claims for payment under this Contract, for a minimum retention period of seven (7) years beginning on the first day after the final payment under this Contract, or such longer period as is necessary for the resolution of any litigation, claim, negotiation, audit or other inquiry involving this Contract. The Town shall have access during the Contractor’s regular business hours and upon reasonable prior notice, to such records, including on-site reviews and reproduction of such records at a reasonable expense … 26. Audit, Inspection and Recordkeeping At any time during normal business hours, and as often as the Town may deem it reasonably necessary, there shall be available in the office of the Contractor for the purpose of audit, examination, and/or to make excerpts or transcript all records, contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. The School is advised that 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). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Additionally, public records must be maintained and kept in a manner that allows access by the general public,

Nicole L. Kieser SPR25/2711 Page 4 September 25, 2025 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). In this case, it appears that the School exercises significant control over the responsive records maintained by DillingerRAD. Further, the School’s contract with DillingerRAD provides that DillingerRAD “… shall comply with the provisions of Chapter 66 … of the General Laws of Massachusetts as [it] relates to public documents[.]”Consequently, I find that the School has not met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. Conclusion Accordingly, the School is ordered to provide Attorney McDonnell 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. Attorney McDonnell may further 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: John McDonnell Esq. Jennifer F. King, Esq.