Jeanne Teichert v. Andover, Town of - Public Schools (SPR 20170803)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 5, 2017 SPR17/803 Paul P. Szymanski Assistant Superintendent Town of Andover Public Schools 36R Bartlet Street Andover, MA 01810 Dear Mr. Szymanski: I have received the petition of Jeanne Teichert appealing the response of the Town of Andover Public Schools (School) to her May 2ih and May 29, 2017 requests for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Teichert requested from the Chair of the Town of Andover School Committee (School Committee) an electronic copy of: 1. Any letter or email that Susan McCready, Chair of the Committee referenced during the May 25, 2017 School Committee from Dr. Berman regarding his request to extend his evaluation past the contractual record, 2. Any of Ms. McCready's written responses and any other written communication to or from any School Committee member or school staff relating to this issue 3. All email communications to and from every School Committee member on any School server from January 1, 2017 to the present. Open Meeting Law In her appeal petition, Ms. Teichert raises issues that potentially invoke the Open Meeting Law, including the content of agendas and documents associated with them. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO), it is recommended that the parties contact the AGO where appropriate. See G.L. c. 30A, §23. Requests 1 and 2 In a May 29th email response, Ms. McCready informed Ms. Teichert that "the letter and/or email responsive to her request does not exist, and per the School Committee's Legal Counsel, there will be a memo of understanding between the School Committee and Dr. Berman 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

Paul P. Szymanski SPR17/803 Page 2 July 5, 2017 if the Committee determines on June gth that the superintendent evaluation will be delayed beyond the contractual date of June 30th. Equally, there are no emails on this topic." In your June 12th email to Ms. Teichert in your capacity as the Records Access Officer for the School District, you confirmed that the document she requested was never generated and does not exist. Under the Public Records Law, the School or School Committee is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control ofthe custodian of records atthe time ofthe request. See G. L. c. 66, § 10(a)(ii). Request 3 - emails In a response dated June 12, 2017 you provided Ms. Teichert with a written estimate for complying with her request for emails of the School Committee at a total cost of $11,025.00. Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10 ( d). The fees must reflect the actual cost of complying with a particular request. I d. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10 ( d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10 ( d)(iv). See G. L. c. 66, § 10 ( d)(iii); 950 CMR 32.06(4 ). The School's June Ii,fee estimate You indicate there are approximately 6,647 responsive emails and assert "they are also likely to contain content which is exempt from disclosure based on the attorney-client privilege and ongoing collective bargaining." You state "each email record properly must be reviewed and redacted where appropriate

Paul P. Szymanski SPR17/803 Page 3 July 5, 2017 to prevent unlawful disclosure-a process which is recognized by the Public Records Law." The School estimates "it will take approximately 4 minutes to review each ofthe 6,647 emails, for a total review time of 443 hours." The School assesses an hourly rate of $25.00 an hour. However, it is unclear why four minutes is required to review each email. Further, the School has not indicated how the $25.00 an hour rate is the lowest hourly rate that may be assessed. G. L. c. 66, § 10 ( d)(iii). In addition, it does not appear the School has suggested a reasonable modification of the scope of the request or offered to assist the requestor to modify the scope of the request in order to enable it to produce records sought more efficiently and affordably. See G.L. c. 66, § 1O (b )(vii). In a conversation with a Public Records Division attorney you indicated that the School would provide a supplemental response to provide further detail and explain which laws or exemptions allow the School to withhold emails and/or segregate and redact content of the emails. Conclusion Accordingly, I will consider this appeal closed with the proviso that the School provide Ms. Teichert with a response in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. 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. Ms. Teichert may appeal the substantive nature of the supplemental response within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, ~y~ Supervisor of Records cc: Jeanne Teichert