Andrew McIsaac v. Cape Cod Regional Technical High School (SPR 20170971)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 24, 2017 SPR17/971 Robert P. Sanborn, III Superintendent/Director Cape Cod Regional Technical High School 351 Pleasant Lake Avenue Harwich, MA 02645 Dear Mr. Sanborn: I have received your petition on behalf of the Cape Cod Regional Technical High School (School) seeking an extension of time to furnish copies of a requested record, or any portion thereof, as well as to charge more than $25.00 per hour for the provision of records. G. L. c. 66 § lO(c); G. L. c. 66, § 10(d)(iv). As required by law, the School furnished a copy ofthis petition to the requestor. Id. Andrew Mcisaac requested "all email messages created and received by Kclemens@capetech. us." Petitions for an extension oftime Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; ( v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66 § 10(c). 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

Robert P. Sanborn, III SPR17/971 Page 2 July 24, 2017 If the Supervisor determines that the request is part ofa series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requester within ten business days after receipt of a request for public records. 950 CMR 36.06(4)(b). Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Current petition In its July 17, 2017 petition the School is requesting an extension of time to comply with the request as well as a waiver ofthe statutory limits on fees "given the volume of requested records as well as the confidential nature of at least half of Ms. Clemens communications." You indicate "there are approximately 109,000 e-mails" responsive to the request. The School further explains "an initial inspection indicates that at least half of these e-mails contained confidential student records information or personal information regarding school personnel that is exempt

Robert P. Sanborn, III SPR17/971 Page 3 July 24, 2017 from disclosure under MGL c. 4, Section 7(26)(c)." The School also notes "there are additional emails where school legal counsel is a party which may implicate the attorney-client privilege, as well as student record privacy rights." Prior to submitting the petition to this office, the School provided a response to Mr. Mcisaac's request on July 10, 2017 seeking clarification of a time frame for the requested records. Specifically, the School inquired how far back Mr. Mcisaac was seeking the emails so the School could "ascertain the cost of redacting the private information contained." A fee estimate was also provided on July 17, 2017 for the provision of a broad set of responsive records. Under the updated Public Records Law and Access Regulations, an agency or municipality must provide a written response to the requester within ten business days. G.L. c. 66, § 10(b); 950 CMR 36.06(2)(a)-(b). This written response may "suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably." G.L. c. 66, § 10(b)(vii). The School provided this suggestion in its July 10, 2017 response. I understand a Public Records Division staff member contacted you and you indicated that Mr. Mcisaac has not yet responded to the suggestion to modify the scope of the request. Conclusion Accordingly, I find that in light of the School's July lOth response suggesting a modification of the request, as well as communications with this office, it is unnecessary to opine on the School's petition to relieve it of its obligation to fulfill the request at this time. See G.L. c. 66, § 10(b)(vii); see also G.L. c. 66, § 10(a)(i)(a request must reasonably describes the public record sought). Upon receiving clarification from Andrew Mcisaac about the scope of his request, the School must provide the records in a manner consistent with the Public Records Law and its Regulations. If after hearing from Mr. Mcisaac regarding his clarification the School still requires an extension of time to comply with the request or a waiver of the statutory limits on fees, the School may file a subsequent petition. See G.L. c. 66, § 10 (c ); 950 CMR 32.06(4 )(g). Sincerely, ~ay~ Supervisor of Records cc: Andrew Mcisaac