Ronald Alexander v. Wellesley, Town of - Public Schools (SPR 20161168)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of Records December 21, 2016 SPR16/1168 Ivria Glass Fried, Esq. Miyares and Harrington, LLP 40 Grove Street, Suite 190 Wellesley, MA 02482 Dear Attorney Fried: I have received the petition of Ronald Alexander appealing the response of the Town of Wellesley- Public Schools (Schools) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Alexander requested access to review all emails sent, received, deleted, archived or otherwise from the Schools email system from June 1, 2014 through September 30, 2014. Mr. Alexander seeks to provide the Schools with an external USB hard drive to copy the emails onto. On November 4, the Schools provided Mr. Alexander with a written, good faith estimate. Mr. Alexander appealed. Fees and waiver off ees A custodian of records may charge for the costs of search, segregation and copies as long as the fees are reasonable and in compliance with the Public Records Law Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Ifthere are any fees associated with a response a written, good faith estimate must be provided. 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 ($10.00), custodian ofrecords shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. Mr. Alexander believes that the Schools should provide the records free of charge because he did not ask for copies; he asked to have access to inspect the records and/or to have the records be electronically transferred to a USB computer drive which he will provide. He further asserts that the Schools cannot charge fees for access to "electronic" records, nor for "segregation" of electronic records. He claims that redaction of the "electronic" record must be done on the original electronic record itself, not on a paper copy. Finally, Mr. Alexander urges this office to compel the Schools to provide all records to him at zero cost. He states that the records could be emailed to him or scanned and provided in One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Ivria G. Fried, Esq. SPR16/1168 Page 2 December 21, 2016 PDF format. While the Public Records Law encourages records' custodians to waive some costs in providing public records, this office cannot mandate that a records custodian do so. 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, § lO(a). In situations, such as in this appeal, where the records are electronically-held or computer records, the custodian may charge "search time" to cull the records from the computer or computer servers, and can charge for "segregation time" to review and remove exempt content from the record. Written, good faith estimate In the initial November 4 response, the Schools provided an estimate that consisted of 21,860 hours to search for and segregate any exempt material found in the content of the Schools' emails. There are one million three thousand eleven six hundred twenty-six (1,311,626) emails responsive to Mr. Alexander's request. The Schools have assessed both search and segregation of the emails at the lowest paid employee, identified as Assistant Superintendent Judith Belliveau's Confidential Administrative Assistant, who is capable of these tasks. Her hourly rate of thirty three dollars and sixty seven cents ($33.67) was multiplied by 21,860 hours (at approximately 1 minute per email) for a total cost of $736,026. In discussions with my staff attorney, you stated that the November 4 estimate is well within reason based on the large amount of responsive records that must be searched, retrieved, and segregated. The large number ofresponsive records were determined· after Schools had IT personnel conduct a quick search in order to calculate how many emails are normally sent and received per month in addition to a quick review of some of the responsive records so that Schools can determine whether segregation would be necessary and what exemptions may apply to the segregated content. You also informed this office that Schools have attempted to ask Mr. Alexander to narrow his request, maybe by limiting the subject matter within a given time period, so that the cost of the fee estimate can be minimized. Mr. Alexander was not willing to do so, stating in his October 28 letter, "ALL messages, ALL senders, ALL recipients, ALL attachments, and ALL metadata including the Date, Time, Subject, From, To, Cc, Bee, Attachments, and routing information fields for ALL messages." Revised Estimate On December 13, the Schools revised its written, good faith estimate from $736,026 to $364,747.11. The Schools IT staff originally provided Mr. Alexander with an estimate of

Ivria G. Fried, Esq. SPR16/1168 Page 3 December 21, 2016 1,311,626 emails responsive to his request. The Schools arrived at this calculation dividing the number of emails received per year by 12. Since November 4, however, the Schools have determined that fewer emails are received in July and August. Therefore, the Schools would like to revise its prior fee estimate. Furthermore, your December 13 revised estimate states that, "on average a Wellesley School Department employee receives 375 emails per month between September 1 and June 30. There are approximately 800 employees in the Department. Thus, for the month of June and September 2014, we have estimated that there are 600,000 records responsive to your request. In contrast, there are approximately 34 employees that work during July and August. These employees receive approximately 25 emails per calendar day during this period. For the month of July and August 2014, there are approximately 50,000 records responsive to your request. Therefore, in total, there are approximately 650,000 records responsive to your request." While the Schools have reduced the estimate by approximately $371,279, I find that the estimate is still relatively high and should be revised further. The Public Records Law and exemption claims The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10( c) ; 950 C.M.R. 32.08(4 ). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10( c ); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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. Initially, Ms. Belliveau's November 4 response only briefly touched upon the issue of protecting the privacy of individuals who may be identified in the responsive records, implying that the records will be subject to redactions pursuant to exemptions in the Public Records Law. Ms. Belliveau did not specifically claim exemptions; she just provided a written, good faith estimate. Your December 13 email to Mr. Alexander specifically explained what exemptions in the Public Records Law are likely to be cited for any exempt material within the content of the records, and you elaborated on how those exemptions may apply. To further meet its statutory obligation, at the time that the records are provided, the Schools should also provide a privilege log or detailed response citing the exemptions and again specifically explaining how those exemptions apply to the redaction of content from the records that Mr. Alexander receives.

Ivria G. Fried, Esq. SPR16/1168 Page 4 December 21, 2016 Order I find that the Schools revised December 13 fee estimate is not reasonable and must be further revised. Accordingly, the Schools are hereby ordered to provide Mr. Alexander with a revised estimate, provided in a manner consistent with this order, the Public Records Law and its Regulations. Once Mr. Alexander pays the estimate, the Schools must commence the search and segregation of the records. If the Schools segregate any exempt material, Mr. Alexander should be provided with the records, a detailed response specifically explaining the exemptions and how those exemptions apply. A copy of any such 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. cc: Mr. Ronald Alexande~