Sheena Stack v. Andover, Town of - Public Schools (SPR 20161248)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 4, 2016 SPR16/1248 Amy M. Rogers, Esq. Lyons & Rogers, LLC 800 Hingham Street, Suite 204S Rockland, MA 02370 Dear Attorney Rogers: I have received the petition of Sheena Stack appealing the response of the Town of Andover- Public Schools (Schools) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mrs. Stack requested records regarding educator qualifications, certification and licensing, a list of teachers and specialists in special education, and information on instructional writing used in language-based programs. On December 27, 2016, as Legal Counsel for the Schools, you provided Mr. and Mrs. Stack with a response to the requests, including a written, good faith estimate for the fees assessed by the Schools to comply with the requests. Certain of the records have been provided to the Stacks, however Mrs. Stack appealed because not all of the requested information has been provided by the Schools. Written response and good faith estimate In your December 27 response, you informed the Stacks that the Schools will provide the responsive records after the Schools receive payment of the fee estimate for the costs of searching for, segregating and redacting any exempt information from the records. In response to the request for teacher certifications, you advised the Stacks that the Department of Elementary and Secondary Education maintains teacher certification information on its website free of charge. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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 of records shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. While the Schools may assess fees in complying with a public records request, those fees must be reasonable and in compliance with the Public Records Law Access Regulations 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

Amy M. Rogers, Esq. SPR16/1248 Page 2 January 4, 2016 (Regulations). Your December 27 written, good faith estimate states that the Schools estimate that twenty hours of search, segregation and redaction is required to be undertaken with this request. While the new provisions for fees under the Public Records Law do not take effect until January 1, 2017, the Schools have applied the "new law" and reduced the number of hours from twenty to eighteen to complete the tasks of both search and segregation (redaction). Based on the lowest hourly rate capped at twenty-five dollars ($25.00) per hour, the total cost to Mr. and Mrs. Stack will be $450.00. However, I find that the Schools have not explained why eighteen hours of time is necessary to complete the tasks of searching for the records and redacting the records. Most troubling in your December 27 estimate is the paragraph which states, "[T]he actual cost to the District includes not only search, segregation and redaction time, but there are legal costs associated with the response as well. The actual hourly rate of the lowest paid employee at the District who is capable of performing the task of segregating, searching, and redacting records responsive to the request is $42.63 per hour. Although such an employee is salaried, the cost associated with this response is $852.60." "Additionally, the legal fees incurred in responding to this request can reasonably be expected to be about $2,610.00 which includes four (4) hours to prepare the response and an additional ten (10) hours to review the redactions. The actual cost to the District for producing the records responsive to your request is estimated to be $3,462.60. The District is requesting that you pay the actual cost of $3,462.60 for the redacted records in order to reduce the financial impact of your request on the District's budget." I find that the estimate provided is umeasonable and not in compliance with the Regulations. The Schools may not charge a requester for the costs associated witf1 consulting its Legal Counsel, nor may it assess a fee for "preparing" a response and "reviewing" redactions. Responding to public records requests is part of the day-to-day function and duties of a government entity. Therefore, the estimate must not only be revised, but the number of hours must be thoroughly explained to support eighteen to twenty hours for search and segregation. Clarification of requests In Mrs. Stack's December 29, 2016 petition for an appeal, Mrs. Stack clarified her requests. Mrs. Stack states that she is requesting records or information, specifically: 1. I wish to know if the teachers who are involved and teach in the language-based program at Andover High School can demonstrate that they are appropriately and adequately trained to do their job. "My concern' stems from the fact that they have had a person teaching in the language-based program since March 2016 who apparently is not qualified to be teaching."

Amy M. Rogers, Esq. SPR16/1248 Page 3 January 4, 2016 2. I also asked for "what instructional writing program" is utilized at the language based program at Andover High School. I am seeking which instructional methodologies are utilized. 3. I also requested the "spreadsheet of which teachers are trained in which methodologies in its Excel format." "My understanding is that this item existed when the Director of Student Services, Sara Stetson, referenced that she had it at a recorded school committee meeting on July 28, 2016." In a telephone conversation on December 30 with Melissa Curran in your office, an attorney on my staff explained that a new appeal was opened regarding the response provided by the Schools on December 27. In particular, the Stacks have clarified their requests that are outstanding. The fee estimate was also discussed and a revision to the fees assessed should also be forthcoming. It is my understanding that a supplemental response will be provided to the Stacks. Accordingly, whereas the Schools has promised to provide a supplemental response, I will consider this appeal closed with the proviso that the Schools provide Mrs. Stack, within ten (1 0) days, a response to the request and a revised written estimate, in a manner consistent with this order, the Public Records Law and its Regulations. 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. Sincerely, VI'JW;wlC;4- (}p_}JUM, Rebecca S. Murray Supervisor of Records cc: Sheena Stack cc: Paul Szymanski