Cheryl Garrity, Esq. v. Tewksbury, Town of - Public Schools (SPR 20160171)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 23, 2016 SPR16/171 Mr. Michael J. Long, Esq. Long & DiPietro, LLP Attorneys at Law 175 Derby Street, Unit 17 Hingham, MA 02043 Dear Attorney Long: I have received the petition of Cheryl Garrity, Esq. appealing the response ofthe Town of Tewksbury-Public Schools (School District) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Garrity requested seven (7) itemized requests for communications from May 1, 2015 to December 17, 2015 (date of the request). Attorney Garrity seeks these records in electronic format, however if the records require scanning in order to provide in electronic format, Attorney Garrity seeks access to review at the School District's office. School Superintendent John E. O'Connor provided Attorney Garrity with a written estimate on February 8. Attorney Garrity appealed the estimate The School District failed to provide a timely response The School District failed to provide a response in a timely manner by providing a February 8, 2016 fee estimate, fifty-three (53) days after the request. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days ofthe request. G. L. c. 66, §10(b); 950 C.M.R. 32.05. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. Fees for search and segregation ofpublic records A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Michael J. Long, Esq. SPR16/171 Page 2 March 23, 2016 to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). 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 andre-file 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 costs for search and/or segregation must reflect the actual cost ofcomplyingwithaparticularrequest. G. L. c. 66, § IO(a). Fee Estimate The February 8 written fee estimate of six hundred seventy-two dollars and fifty cents ($672.50) fails to provide the requisite detail to allow the requester to gauge whether the estimate is reasonable for the request that was made to the School District. Superintendent O'Connor's estimate states that the Director of Technology, School District Staff and individual School Committee members will collectively spend twenty-six (26) hours with total cost for these individuals of $650.00. While the School District lists the number of hours that may be necessary for the staff to comply with the public records law, the School District has not detailed the hourly rates and the tasks to be conducted to support the number of hours listed in the estimate. A requester should not have to calculate the hourly rates used or guess what tasks are being performed for the number of hours. The School District has a duty to explain in detail all the costs that are being assessed, and why it is necessary to have those tasks split between several individuals. Furthermore, the estimate fails to explain whether the costs are for search or segregation, or both, and whether the School District is providing the records in electronic format as requested. Therefore, I find that the School District must provide Attorney Garrity with a revised written good faith estimate. Records must be provided in native format if available and requested in that form The written estimate provided to Attorney Garrity fails to provide her with the costs to receive the records in electronic format, as requested, or an offer to provide the records for her review at the School District's office. I advise the School District that any records that are naturally in electronic or computerized format, such as emails or other computer-based records, must be provided in native format if so requested. Therefore, I find that the School District must provide Attorney Garrity with an estimate to obtain the records in electronic format to the extent records are available in that form.

Mr. Michael J. Long, Esq. SPR16/171 Page 3 March 23, 2016 School Committee records A review of the estimate raises questions regarding the records management practices of the School Committee members. In particular, whether email correspondence and other electronic records involving the School Committee and its members are being retained in a manner consistent with the requirements under the law. G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. To assist the School District in meeting its burden, I advise that both the School District's employees and the School Committee members review the Municipal Records Retention Manual, available free of charge online at www.sec.state.ma.us/arc/arcrmu/ rmuidx.htm. · I find the School District has failed to properly respond to a request for public records. Accordingly, the School District is hereby ordered, within ten (10) days ofthis order, to provide Attorney Garrity with a detailed, written good faith estimate, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the School District maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Attorney Garrity a written explanation, with specificity, how a particular exemption applies to each requested record, or portions of a record. 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. A copy of your written, good faith estimate and any other response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. To assist the School District and School Committee in responding to requests for public records I advise both the School District and School Committee to review our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at htt ://www.sec.state.ma.us/ re/ re df/ uide. df. Attorneys on my staff are available during regular business hours to answer ge ral questions regarding the Public Records Law. In addition, members of my staff will visit a r ords custodian in person to conduct training workshops on the Public Records Law upon quest. Please contact my office directly at the telephone number below for further in r tio cc: Ms. Cheryl Garrity, Esq. Mr. John E. O'Connor, Ed. D.