The Public Records Law:
The Massachusetts Public Records Law (Public Records Law) and its Regulations provide that each person has a right of access to public records. The Public Records Law broadly defines “public records” to include “all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee” of any Massachusetts governmental entity.
How It Can Affect Your School:
Political interest groups are increasingly making public records requests seeking documents that relate to school districts’ curriculum and, in particular, records that relate to Critical Race Theory, sex education and other topics that relate to their agenda. These materials may include descriptions of books, materials, videos, web-based materials, invoices, and a wide range of other curricular materials.
How to Handle these Requests:
It is important to remember that the Public Records Law only applies to existing records. It does not require the disclosure of non-documentary information. That said, school committees should consider responding whenever possible to minimize the possibility of escalating the requestor. Another approach, particularly for generic/spam-type requests or requests for numerous documents, is to require the requestor to pay for a good-faith estimate of costs for search and segregation costs in advance.
The Open Meeting Law & Public Comment:
The Massachusetts Open Meeting Law requires, with some exceptions, that meetings of public bodies be open to the public, to ensure transparency in the deliberations on which public policy is based. Although the Open Meeting Law requires meetings of public bodies be open to the public, public comment is not required by law. If a school committee chooses to allow public comment, it should maintain a specific policy that limits the amount of time for each speaker or group and the total amount of time for public comment. Additionally, there should be expectations set prior to meetings emphasizing the difference between public comment and public debate. Public comment is for individuals to express their views. It is not a public debate. As such, the school committee should, generally, not respond to public comment. If situations arise where public comment becomes disruptive, school committees can and should recess or adjourn a meeting and call police, if necessary.
First Amendment Free Speech Considerations & Public Comment:
School committees should keep in mind that, under the First Amendment, limitations to “objective” criticisms and “improper” or “abusive” remarks are unconstitutional because they are vague and subject to interpretation based on the content of the speech. However, obscenities (as distinct from profanities), threats and fighting words can be prohibited. Before completely stopping an individual from speaking, the Chair should attempt to redirect any improper behavior. Ultimately, if a school committee allows public comment, it should have a legally sound policy in place that is consistently enforced on a “content neutral” basis.
If you have any questions regarding these laws or other school related issues, please do not hesitate to reach out to any member of Mirick O’Connell’s School Law Group.
