Nitschelm, Allen v. Acton-Boxborough Regional School District (SPR 20150473)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 4, 2015 SPRlS/473 Mr. D.M. Moschos, Esq. Mirick, O'Connell, DeMallie & Lougee, LLP 100 Front Street Worcester, MA 01608 Dear Attorney Moschos: I have received the petition of Allen Nitschelm, on behalf of Acton Forum, appealing the response of Acton-Boxborough Regional School District (School) to his requests for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Nitschelm requested a copy of the minutes from an October 9, 2014 executive session meeting held by the School Committee. In addition, Mr. Nitschelm requested a copy of any correspondence to or from a specifically named individual from September 1, 2014 to the present, including any emails and documents related to the individual's separation from the School. This request was the subject of a previous appeal. See SPR15/168 Determination of the Supervisor ofRecords (May 21, 2015). Previous Determination The School initially provided a response dated February 24, 2015, in which it denied Mr. Nitschelm's request for the executive session minutes, claiming they are exempt from disclosure pursuant to Exemptions (a) and (c) of the Public Records Law as well as the attorney-client privilege. G. L. c. 4, § 7(26)(a), (c); G. L c. 149, § 52C. In a response dated February 27, 2015, the School provided a fee estimate for the provision of the correspondence records, but also indicated that some responsive records may be exempt from disclosure. In my May 21 Determination, I found the School failed to satisfy its burden in responding to Mr. Nitschelm's request for correspondence and that it did not meet its burden of proving that the fee estimate is reasonable in accordance with the Public Records Law and Access Guidelines (Regulations). As a result, I ordered the School to provide a revised fee estimate for the provision of the requested correspondence. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. D.M. Moschos, Esq. SPR15/473 Page Two December 4, 2015 It is my understanding that Mr. Nitschelm's request for executive session minutes was reviewed by the Office of the Attorney General (AGO). See OML 2015- 170 (November 13, 2015). As such, I will not opine on this portion of Mr. Nitschelm's appeal at this time. Correspondence following the May 21 Determination June 8 letter from the School In response to the May 21 Determination, the School provided a response to Mr. Nitsche1 m dated June 8, 2015. In the June 8 letter, the School provided further explanation of its exemption claims pertaining to Mr. Nitschelm's request for correspondence. Specifically, the School claimed portions of the responsive records may be withheld pursuant to Exemptions (a) and (c), as well as the attorney-client privilege. The School also provided further description of the costs that led to the $245.00 fee estimate for the provision of responsive records. June 12 email from Mr. Nitschelm In an email dated June 12, 2015, Mr. Nitschelm informed this office that the Acton Forum paid the $245.00 amount, but sought to appeal this fee estimate nonetheless. Mr. Nitschelm indicated that "most of the appeal should be put on hold" and that "for now, our specific appeal just concerns the fee ...." This office opened this appeal (SPR15/473) in light of Mr. Nitschelm's June 12letter. August 21 letter from the School In a letter dated August 21, 2015, Superintendent Glenn A. Brand, on behalf of the School, provided partially redacted responsive records and withheld others. The School provided a custodial index along with the documents that explains the basis of the redactions and/or withholding of records. The School also explained that while the initial fee estimate was for $245.00, the "actual cost of just the search and segregation tasks to respond to your request was $376.25." August 27letter from Mr. Nitschelm In an attachment to an email dated August 27, 2015, Mr. Nitschelm informed this office that the Acton Forum wishes to appeal the School's August 21 response and specifically objected to the $245.00 fee estimate, redactions, and the School's withholding of certain documents. August 31 letter from the School You provided a letter to this office on behalf of the School dated August 31, 2015. This letter elaborates on the explanations regarding the fee estimate and exemption claims provided in the School's August 21 letter. Further, you point out that in an email to a School employee dated August 7, 2015, Mr. Nitschelm clarifies that intent ofhis request was "to get all documents

Mr. D.M. Moschos, Esq. SPR15/473 Page Three December 4, 2015 related to [the individual's] departure, including emails and memos written by staff or School Committee members." November I 0 letter from the School In a letter to this office dated November 10,2015, you provided a further response on behalf of the School. This letter is in response to Mr. Nitschelm's August 27 letter and briefly addresses the points raised therein. I will now address each item addressed in Mr. Nitschelm's August 27 letter, specifically the $245.00 fee estimate, redactions, and the School's withholding of certain documents. Fee estimate A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($1 0. 00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Regulations. See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee oftwenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer printout of a public record. See 950 C.M.R. 32.06(l)(a). In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(l)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10 (a ). In its August 21 letter, the School explains that the "actual cost of just the search and segregation tasks to respond to your request was $376.25." As noted above, the initial fee estimate was for $245.00. The School stated that it is not asking Mr. Nitschelm to pay the remaining amount and notes that it did not charge Mr. Nitschelm for the copying costs associated with providing the records. The School explains that the $376.25 amount was comprised of the following: (1) forty five (4 5) minutes to segregate responsive documents, including personnel file documents, by the Executive Secretary at a rate of $35.00 an hour (total of $26.25); (2) two (2) hours to search for emails by an employee ofthe IT department at a rate of$35.00 an hour (total of$70.00); (3) eight (8) hours to segregate emails by the Executive Secretary at a rate of $3 5. 00 (total of $280.00). Whereas the actual cost to provide the records was $376.25, I find the $245.00 fee

Mr. D.M. Moschos, Esq. SPR15/473 Page Four December 4, 2015 estimate to be reasonable under the Public Records Law and its Regulations in light of the School's explanation in its August 21 letter. See G. L. c. 66, § lO(a) (the custodian may assess search and segregation fees that reflect the actual cost of complying with a particular request). Redactions and withholding of records In its August 21 letter, the School provided a custodial index with descriptions of the withheld and redacted records along with an explanation of its exemption claims. The School claims responsive records may be withheld or redacted for several reasons, including Exemptions (a) and (c) along with the attorney-client privilege. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26)(c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). The records custodian's classification of materials as "personnel information" is not conclusive. Wakefield Teacher's Ass 'n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character ofthe documents, as opposed to the documents' label, is crucial to the analysis. See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 386 (2002). The Supreme Judicial Court of Massachusetts has found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield, 431 Mass. at 798. The second clause of Exemption (c) requires a records custodian to perform a two-step analysis to determine whether the record may be withheld from disclosure. First, the records custodian must determine whether the information constitutes an "intimate detail of a highly personal nature." If so determined, then the records custodian must consider whether the privacy interests of the individual outweigh the public interest in disclosure of this information. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156 (1979). First, it should be noted that the public status of Document 4, the Separation Agreement, was first addressed in a separate appeal. See SPR15/651 Determination ofthe Supervisor of

Mr. D.M. Moschos, Esq. SPR15/473 Page Five December 4, 2015 Records (October 5, 2015). This document is now the subject of an appeal that is currently open with this office. See SPR15/827. As a result, I will not opine on the School's exemption claims regarding this record. I find the School has met its burden to withhold Documents 1, 2, 3, 5, and 10 in the custodial index, which the School claims may be withheld under the personnel clause of Exemption (c), because they relate to the individual's departure from the School. These records may be "useful in making employment decisions" as required by the personnel clause of Exemption (c), particularly in light of the fact that Mr. Nitschelm's request is for "all documents related to [the individual's] departure." See Wakefield, 431 Mass. at 798. As such, I will not opine on the School's Exemption (a) claim. With regard to Documents 6, 7, 8 and 9, which the School claims may be redacted under the second clause of Exemption (c), the School does not describe whether the documents contain "intimate details of a highly personal nature" as required by the second clause of Exemption (c). For example, these redacted documents are described as "redacted email" with the date and sender and recipient, but no further information regarding its subject matter is provided. The School also claims these documents implicate "first amendment rights to petition government." However, the School provided no further detail to justify this claim. As a result, I find the School has yet to justify the redactions contained in Documents 6, 7, 8 and 9. Conclusion For the reasons described above, I find the School met its burden under the Public Records Law in providing the $245.00 fee estimate and justifying the withholding of Documents 1, 2, 3, 5, and 10. However, the School has not yet met its burden to justify the redactions in Documents 6, 7, 8, and 9. Accordingly, the School is hereby ordered, within ten (10) days, to provide unredacted copies of Documents 6, 7, 8, and 9 or a revised custodial index that meets the requirements described in the Regulations. A copy ofthis response must be prov.ided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. cc: Mr. Allen Nitschelm Mr. Glenn A. Brand Mr. Jonathan Sclarsic, Esq.