George P. King, Jr. v. Nashoba Regional School District (SPR 20171005)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 7, 2017 SPR17/1005 Kerry Regan Jenness, Esq. Murphy, Hesse, Toomey & Lehane, LLP 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Jenness: I have received the petition of George P. King, Jr. appealing the July 17, 2017 supplemental response of the Nashoba Regional School District (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. King requested fourteen (14) categories of records from the School. On July 24th, Mr. King paid the estimated cost of$16.67 to obtain the records responsive to his Requests Numbered 1, 2, 3, 5 and 8. You explained to a Public Records Division Attorney on August 4th that Mr. King received all the records responsive to his Requests Numbered 1, 2, 3, 5 and 8. Unsatisfied with the School's response with respect to remaining requested records, Mr. King filed an appeal to this office. Prior appeal and determination The requested records were the subject of a prior appeal and determination of the Supervisor ofRecords (Supervisor). See SPR171787 Determination ofthe Supervisor of Records (June 21, 2017). In my June 21st determination, I ordered the School to provide another response to explain and detail why the School requires 40 hours to complete the request for the responsive records. The School was ordered to clarify how many responsive records it possesses in each category of the request; to provide the scope of the redactions that are required by law; and to demonstrate whether the hourly rate of $25.00 per hour is the lowest paid hourly rate of the individual capable of reviewing and redacting the records. In addition, I ordered the School to state whether the School can suggest a reasonable modification of the scope of the request, or offer to assist the requester to modify the scope of the request in an attempt to produce the records sought in a more efficient and affordable manner. G. L. c. 66, § 1O (b )(vii). On behalf ofthe School and the School's Records Access Officer (RAO), you provided a further response on July 1i 11 regarding the estimated fees to provide the requested records. The 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

Kerry Regan Jenness, Esq. SPR17/1005 Page 2 August 7, 2017 crux of the current appeal is that Mr. King believes that the School has not provided him with a sufficient written response within ten business days of receiving his May 22nd request and that the number of hours and total cost of the fee estimate is unreasonable. He asks that the Supervisor order the School to waive the fees, because the School did not meet the criteria in providing a proper response under G. L. c. 66, § 1O (b ). Compliance with the requirements ofp roviding a response; duty to pay fees upfront An RAO may not charge a fee unless the RAO provides a written response in compliance with G. L. c. 66, § lO(b) within ten business days following recept ofthe request. The School may not be permitted to charge fees associated with the May 22n request if the School did not provide a response in full compliance with this provision of the law. See G. L. c. 66, § lO(e); see also 950 C.M.R. 32.06(2)(c). A review of the documents submitted by Mr. King reveals that the School provided a June 6th response, including a fee estimate on the tenth business day following receipt of the May 22nd request. The School is in compliance with the ten business day requirement of the Public Records Law. G. L. c. 66, § 10(a). However, an RAO's written response must not only be provided within ten business days, but must also comply with the criteria listed in the statute. The written response shall be made via first class or electronic mail and shall: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) identify any records, categories of records or portions of records that the agency or. municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency's or municipality's ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein;

Kerry Regan Jenness, Esq. SPR17/1005 Page 3 August 7, 2017 (vii) 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; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) of section 1O A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection (c) of section 1O A. G. L. c. 66, § 10(b). It is unclear whether the School complied with all the criteria required by a RAO in providing a response to a public records request. G. L. c. 66, § 10(e); 950 C.M.R 32.06(2)(c). Therefore, I find the School must demonstrate whether it responded to May 22nd request by meeting all the criteria in G. L. c. 66, § 1O (b ). Mr. King informed the RAO in his July 24th email that the Public Records Law does not require that he pay the fee prior to receipt of records. The Public Records Law requires a requester to pay a fee estimate prior to the agency or municipality conducting search, segregation and redaction ofrecords, and prior to receipt of the records. "A RAO may delay provision of records until all fees related to such requests are paid in full by the person seeking access to requested records." See 950 C.M.R. 32.06(2)(£). July lfh supplemental response (fees) -More clarity necessary ih In response to my June 21st determination, the School provided a July 1 supplemental ih response. However, I find that the School's July 1 fee estimate does not fully explain the issues raised from your June 6th response and estimate. The School does not explain why it will take forty ( 40) hours to search for, compile, segregate (review) and redact information within the emails and .text messages, such as student ih record information (Requests Numbered 9-14 ). Your July 1 estimate did not detail how much time is required for each separate task, such as "searching for and compiling" and for "segregation and redaction." The School did not indicate how the search would be conducted, and whether the search and compilation of the records is being done by any Information Technology (IT) employees that the School may employ. It is my understanding that you informed a Public Records Division Attorney that the School utilized its IT employees to conduct the search, because it is more efficient to do so. You indicated that a supplemental response will explain what criteria was used to conduct the search, why IT performed the search, and what the normal hourly rates are for the IT employees that will conduct the search. The School has informed Mr. King that it will only charge twenty-five ($25.00) dollars per hour, the maximum allowed by the Public Records Law. G. L. c. 66, § 10(d)(viii).

Kerry Regan Jenness, Esq. SPR17/1005 Page4 August 7, 2017 The School has not explained how many records it believes are responsive to each request, the scope of the redactions that it believes are necessary prior to disclosure, and which employee or employees will review and redact the restricted student record information contained within the content of the records. Nor has the School indicated whether the $25.00 dollar per hour rate for each of the tasks is the lowest paid hourly rate of the School employee capable of conducting each of the tasks involved, such as searching for, mid for segregation and redaction of the records. The School has offered a solution to try to reduce the number of emails that the School will be required to search for and compile, by asking Mr. King to tailor his request to capture only emails between the named persons in his request and specify other persons in the School email domain, rather than searching the entire domain. You also suggested that Mr. King could reduce the search time by limiting the search to the named persons' School accounts rather than including their personal accounts, or to limit the requests to a time period in which to conduct the search, such as January 2016-May 2017. To date, Mr. King has not narrowed his requests. ih You write in footnote 3 in your July 1 response that the School conducted a test to see how much search time might be necessary to search each of the email accounts of the identified persons in the request, and that it took approximately 8 hours of staff time to search Ms. Co dianne's email accounts. You posit that it may take the same amount of time for another person's account, and still even more time for a third person's emails due to the volume of emails in this persons email accounts. Request Number 5-Executive session minutes ih In the School's July 1 response, it was indicated that meeting minutes are available on the School's website. However, it was clarified that the particular executive session minutes requested have not been voted on by the School Committee for release at this time. The School asserted that once the School Committee votes to release the minutes, the minutes will be available on the website without charge. For additional information about executive session minutes, please contact the Office of the Attorney General's Division of Open Government. Request Number 6-Contract records Mr. King asks that the School further clarify its answer that it has no records responsive to his Request Number 6 for a contract signed by Brooke Clenchy. He believes that a contract may have been signed by Ms. Clenchy in or around July 2016. He seeks clarification on whether a contract was signed and then voided or destroyed, or whether the contract never existed. I ask that the School also clarify its response regarding the contract that Mr. King believes the School might have had.

Kerry Regan Jenness, Esq. SPR17/1005 Page 5 August 7, 2017 Conclusion A Public Records Division Attorney had an August 4th conversation with you regarding this appeal in which you indicated that you would provide more information on the request and estimated costs. A copy of the appeal file was provided to assist you in drafting another response. Accordingly, the School has indicated that another response to further clarify its June 6th and July 1i h written responses and estimates will be provided. I will consider this appeal closed with the proviso that the School provides the supplemental response to Mr. King in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Mr. King may appeal the substantive nature of the supplemental response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: George King Pat Marone, RAO