Kirkpatrick, M.Ed., JOP, Kayla v. Salem, City of - Purchasing Department (SPR 20150134)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 7, 2015 SPRlS/134 Ms. Victoria B. Caldwell, Esq. Assistant City Solicitor City of Salem Legal Department 93 Washington Street Salem, MA 01970 Dear Attorney Caldwell: I have received the petition of Kayla Kirkpatrick appealing the response of the City of Salem (City) to her request for public records. G. L. c. 66, § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Kirkpatrick requested copies of: 1. The packets provided to the Salem School Committee members and used to select members of the Superintendent Search Committee, including the number of votes in favor of each person who submitted interest in serving on the Superintendent Search Committee, 2. Any other submission expressing interest in being a part of the Superintendent Search Committee, and 3. The confidentiality agreement that members of the Superintendent Search Committee signed. On January 2, 2015, the City provided Ms. Kirkpatrick with the expressions of interest, the tally of votes that each selected individual received, the email each individual who was selected received, and the confidentiality agreements they were asked to sign. While not mandated to do so, the City waived all applicable public records fees for this request. After receipt of the records, Ms. Kirkpatrick inquired about whether the City had a copy of the individual votes cast by each School Committee member in selecting from all the interested individuals who applied to serve on the Superintendent Search Committee (Search Committee). Ms. Kirkpatrick also questioned whether she had actually received the same packet One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Victoria B. Caldwell, Esq. SPR15/134 Page Two May 7, 2015 that was provided to the School Committee. In a January 6, 2015 email, Ms. Kirkpatrick requested copies ofthe following records from November 23, 2014 through December 2, 2014 in the original electronic format, including the headers, date and time: 1. All emails sent to, or received by Mayor Kim Driscoll, from each School Committee member, stating who each member preferred for the Search Committee, 2. Or, copies of emails, and/or texts, and/or private messages that each School Committee member sent to Ms. Sacco, Mayor Driscoll, Mr. Huge, or any other representative of the school department or mayor's office, in which said School Committee members expressed their preferences for the Search Committee membership, 3. Or, all emails, and/or texts, and/or private messages sent by each School Committee member to any combination of Ms. Sacco, Dr. Russell, Mayor Driscoll, individually or as any part of a group, other school committee members, or any other representative of the school department or mayor's office, as well as any responses in any format to the said emails. Your January 12, 2015 letter states that the City did not retain the handwritten notes to show whom each member of the School Committee cast a vote for, the only record the School Committee has is a record that shows the tally of the total number of votes that the individuals selected to serve on the Search Committee received. You explained to Ms. Kirkpatrick that the forty-four (44) pages ofrecords were responsive to her request, and you informed an attorney on my staff that that these records are the exact same records received by the School Committee members in their packets. It is my understanding that after two diligent searches, the City has not located any letters of intent from Ben Chertock and Elizabeth Rogers. You explained to this office that it may be that these two individuals did not submit their interests in a letter. It is unclear whether the School Committee had a requirement that a letter of interest be submitted, or whether individuals could submit their name via email or over the telephone. Therefore, I believe that Ms. Kirkpatrick should be provided some explanation regarding the lack of any letters from Mr. Chertock and Ms. Rogers. Furthermore, it is unclear to this office whether the handwritten notes of the individual votes submitted by each School Committee members should have been retained, or whether the procedure followed by the School Committee was in compliance with the Open Meeting Law. This office has no authority to render a determination on the policies and procedures involved with regard to meetings held by public bodies subject to the Open Meeting Law. Any questions, complaints or requests regarding the Open Meeting Law, should be referred to the Division of Open Government of the Office of the Attorney General.

Ms. Victoria Caldwell, Esq. SPR15/134 Page Three May 7, 2015 Written Estimate and Fee Waiver You provided a written, good faith estimate for the cost of providing Ms. Kirkpatrick with copies of the electronic records she requested on January 6. The estimate totaled $58.47, and included three (3) hours of clerical time at the lowest paid hourly rate of $19.49 to search and provide the records in pdf format for sending via email. I find that the estimate is .reasonable, and in compliance with the Public Records Law Access Regulations. 950 C.M.R. 32.06. The City has correctly stated that the requester maybe required to pay such an estimate in advance. Furthermore, while this office encourages custodians to waive fees when possible, I have no authority to mandate that the City do so. It is my understanding that the City previously waived all costs for search and copies of the records the City provided to Ms. Kirkpatrick on January 2, 2015. Whereas, Ms. Kirkpatrick has been provided with the records within the City's custody that are responsive to her December 2014 request, and that the City provided Ms. Kirkpatrick with a written, good faith estimate for electronic records, I will consider this appeal closed. Supervisor of Records cc: Ms. Kayla Kirkpatrick