Kourkoumelis, Carrie v. Melrose, City of - Public Schools (SPR 20150644)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 10, 2015 SPRlS/644 Ms. Cyndy S. Taymore Superintendent of Schools Melrose Public Schools 360 Lynn Fells Park'Yay Melrose, MA 02176 Dear Superintendent Taymore: I have received the petition of Carrie Kourkoumelis appealing the response of the Melrose Public Schools (School) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on March 6, 2015 Ms. Kourkoumelis requested copies of the following records: 1. Office of Civil Rights (OCR) Notice oflnvestigation sent to Melrose Public Schools. 2. All communications between and among members of the School Committee, the Superintendent and legal counsel surrounding the Office of Civil Rights Investigation. 3. All communications (email, US Mail) between Superintendent Taymore and/or Melrose Public Schools staff and/or any members of Melrose School Committee and all attorneys representing the Melrose Public Schools resulting in billable hours from January 2014 through the present. 4. Superintendent Taymore's phone log indicating contact with any and all attorneys representing the Melrose Public Schools resulting in billable hours from January 2014 through the present. This request was the subject of a previous appeal. See SPR15/214 Determination of the Supervisor of Records (July 8, 2015). In my July 8 Determination, I did not opine on Request 1 and I considered Ms. Kourkoumelis' appeal with respect to Request 4 to be closed because the School had no records responsive to this request. With respect to Request 2 and Request 3, I ordered the School to provide records responsive to these requests or provide Ms. Kourkoumelis with an explanation if the School maintains that any portion of the responsive records is exempt from disclosure. The School provided a letter to Ms. Kourkoumelis dated July 29, 2015 in response to the July 8 Determination. Ms. Kourkoumelis appealed this July 29 response. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Cyndy S. Taymore SPR15/644 Page Two December 10, 2015 Identity of requester; purpose of request In correspondence with this office, Ms. Kourkoumelis references her status as "an elected member of the Melrose School Committee." 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 requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). In any event, Ms. Kourkoumelis' statements have no bearing on this matter, as her status does not grant her any greater right of access under the Public Records Law. The School's July 29 response Request I With respect to Request 1, it is my understanding that the School previously provided Ms. Kourkoumelis with a redacted copy of the document responsive to this request. As indicated above, you provided another copy of the responsive record on March 16, 20 15 that appears to be unredacted. In her petition to this office Ms. Kourkoumelis states that there is no date on the document provided on March 16, 2015. As a result, Ms. Kourkoumelis states this "possibly indicates to me that again this is not a fully unredacted copy" of the record and "[a]s such, I would like a date/time-stamped copy of the document as it was received originally." Ms. Kourkoumelis also indicated in her petition to this office that she is "seeking an explanation from the administration about their justification for redaction of the first version of the document they sent to me, since [the March 16, 2015] version was sent without explanation." In a telephone conversation with a member of my staff, Attorney Robert Van Kampen indicated that the OCR sent two versions of the responsive document: one with a date stamp and another without a date stamp. Attorney Van Kampen confirmed that Ms. Kourkoumelis now has a completely umedacted version of the record. These requests for a date/time stamped copy of the document and an explanation justifying the redactions in the first version of the document the School sent to her were not part ofMs. Kourkoumelis' March 6, 2015 request. Further, these requests should be directed to the School and not this office because the Division of Public Records is not a warehouse for all government records. As such, I will not opine on whether the School complied with these requests; however, Ms. Kourkoumelis may make a new request to the School for these documents.

Ms. Cyndy S. Taymore SPR15/644 Page Three December 10, 2015 Request 2 In its July 29 response, the School maintains that records responsive to Request 2 are exempt from disclosure. Request 2 is for "[a]ll communications between and among members of the School Committee, the Superintendent and legal counsel surrounding the Office of Civil Rights Investigation." The School explains how the School staff notified its attorneys and City Solicitor to seek legal advice in responding the OCR investigation. Further, you explain that upon notification of the investigation, "the Superintendent and legal counsel subsequently engaged in confidential written communication regarding the District's response to the OCR investigation for the purpose of seeking legal advice in responding to that investigation." You indicate that the investigation is still currently pending and that the District has not waived this privilege. You also state, "to the extent that your request sought written communications between the School Committee and/or its members relative to the OCR investigation, no such documents exist." I find the School has properly withheld records responsive to Request 2 pursuant to the attorney-client privilege because it proved the existence of an attorney-client relationship, explained how the records were received during the course of the client's search for legal advice, and detailed how the communications were made in confidence and how the privilege has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007). Request 3 In the July 29 response, you indicate that records responsive to Request 3 may be exempt from disclosure pursuant the attorney-client privilege and provide a fee estimate of$7,638.75 for the provision of records. Request 3 is for "[a]ll communications (email, US Mail) between Superintendent Taymore and/or Melrose Public Schools staff and/or any members of Melrose School Committee and all attorneys representing the Melrose Public Schools resulting in billable hours from January 2014 through the present." You state the "[a]lthough the District asserts that, on the face ofthe request itself, the requested records are exempt from the public records law on the basis of the attorney-client privilege, the District is willing to conduct a search" of the responsive records for any records that do not fall under the attorney-client privilege or another exemption to the Public Records Law. The School provided a fee estimate of$7,638.75 for the labor costs associated with searching, redacting, segregating, and refiling the records. In a letter dated October 27, 2015 the School estimates it would take 25 hours Information Technology (IT) staff at $32.55 per hour, 20 hours of outside counsel at $150.00 per hour and another 25 hours of administrative staff for the labor costs associated with searching, redacting, segregating, and refiling the records.

Ms. Cyndy S. Taymore SPR15/644 Page Four December 10, 2015 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(1 )(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, § IO(a). It appears from the October 27 letter that the School intends to charge for the time it would take its IT staff to locate and pull the responsive records from the electronic file. The IT staff would provide the responsive electronic records to the outside counsel to then print and redact any exempt information from the records. It is unclear why there is an additional fee for the administrative staff to make photocopies of the redacted records. In addition, the School's October 27 letter while more detailed than its July 29 letter provided no explanation to justify number of hours it estimates it would take to locate and segregate the responsive records. I find the School has not met its burden of specificity of proving this fee estimate is reasonable and in compliance with the Regulations. Whereas the School has not met its burden of explaining with specificity the estimate associated with providing records responsive to Request 3, the School is hereby ordered to provide Ms. Kourkoumelis with a revised written, good faith estimate for the cost of complying with his request consistent with the Public Records Law, its Regulations and this determination. Be advised that the search and segregation fee must reflect the actual cost of complying with a particular request. If the costs are higher than first estimated, Ms. Kourkoumelis must be provided with a written good faith estimate for the remaining records. If the cost is determined to be less than the estimated fee, the School has a duty to refund the difference. Request 4 With respect to Request 4 for a telephone call log, Attorney Van Kampen informed a member of my staff that you do not maintain a call log. Ms. Kourkoumelis, however, indicates that she has seen a phone log in the Executive offices where the secretary notates calls. A record holder's duty to comply with requests for information extends only to those records that exist and are in his custody. See G. L. c. 4, § 7 (26) (defining "custodian" as the public employee with routine access to or control of public records).

Ms. Cyndy S. Taymore SPR15/644 Page Two December 10, 2015 Accordingly, the School is hereby ordered to review its records to determine whether it possesses any records responsive to request number 4. The Department is further ordered, within ten (1 0) days, to provide a written response to Ms. Kourkoumelis d' cussing the existence and the public status of any such records. cc: Ms. Carrie Kourkoumelis Robert J. Van Campen, Esq.