George P. King, Jr. v. Nashoba Regional School District (SPR 20171294)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 28, 2017 SPR17/1294 Kerry Regan Jenness, Esq. Murphy, Hesse, Toomey & Lehane, LLP 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Regan Jenness: I have received the petition of George P. King, Jr. appealing the response of the Nashoba Public School District (School District) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. King requested 14 categories of records from the School. Mr. King paid for and has received records responsive to his Requests Numbered 1, 2, 3, 5 and 8. · Prior appeals and determinations The requested records were the subject of two prior appeals and determinations of the Supervisor ofRecords (Supervisor). See SPR17/787; SPR17/1005 Determinations ofthe ih Supervisor (June 21, 2017; August 7, 2017). In my August determination, I closed the appeal with the proviso that the School District clarify its estimates and indicate whether the School District complied with the criteria in responding to the request. In a September 6, 2017 response, the School District explained that it had complied with all the applicable regulations in the Public Records Law in responding to Mr. King's request, and it clarified its estimated costs associated with providing Mr. King with the responsive records. In his September 15th petition, Mr. King disagrees that the School District has complied, and he requests that the Supervisor order the School District to waive all the fees to provide records. The School District's initial June 6th response confirmed the request in a timely manner; acknowledged that the request was for a large volume of records; provided and explained its fee ·estimate for search, segregation, redaction and copies of records that likely contain content exempt pursuant to the student records laws. The School District's response explained that it did not request additional time for a response, only that Mr. King pay the estimate prior to the School District conducting the search, segregating, redacting, and copying any records that are not available electronically. Whereas, the School District did not deny Mr. King's request, I find 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. SPR17/1294 Page 2 September 28, 2017 that the criteria applicable to a "written notice of denial" does not apply with this request and appeal. See 950 C.M.R. 32.06(3). The School District has met the requirements in responding to a public records request where it will provide records to the requester. See 950 C.M.R. 32.06(2). Therefore, I find that the School District is not required to waive the fees applicable to the request. Additionally, the School District informed Mr. King that his multi-part public records request will require the School District to run multiple searches of electronic records, resulting in a large number of records that will need to be segregated and redacted to remove student record information. In order to reduce the costs, the School District has suggested to Mr. King that he may wish to modify or narrow his public records, even suggesting a particular way that this could be done. However, Mr. King has neither modified nor narrowed his request. Clarification of estimated fees ih In my August determination, I re~uested that the School District further clarify its i estimate provided in its June 6th and July 1 responses. The School District estimated that forty 40 hours oftime at the maximum allowed hourly rate of$25.00 is necessary to search for, compile, segregate and redact content from the emails and text messages requested, tota1ing ih $1,000. Whereas, the School District's July 1 response did not provide enough information concerning how much time the School District estimates it will take per task, and who will conduct each of the tasks, I asked for clarification. On September 6th, the School District provided another response regarding its estimate. Your September 6th letter explained that the School District will utilize its Information Technology Director to search for and compile the emails and text messages because the IT Director is the person with the necessary skills and ability to complete the task of searching for and compiling the records. The IT Director's hourly rate is $48.84; however, the School District assessed $25.00 per hour, the maximum hourly rate allowed by the Public Records Law. In order to potentially identify how many records it may have and how long it would take to complete the task of search and compilation, the School District conducted a test search of both Kathy Codianne's name and email address. The search resulted in 631 documents responsive to a search run by name, and 11 7 4 run by email address. You state that the test search only concerning Ms. Codianne resulted in a large volume of emails and required 8 hours of staff-time to complete. You posit that it will take the School District approximately 8 hours of search time to search for another specifically-named person's email, and 8 hours to search for the third specifically-named person's email. The School District believes that as a result of conducting a test search, the bulk of the time estimated (approximately 36 hours) will be for the search and segregation process, with nominal time spent by the School District's Superintendent and/or Legal Counsel reviewing the records for redactions of student record information. You informed Mr. King and this office in your September 6th letter that Superintendent Clenchy's and your rate are both above the $25.00

Kerry Regan Jenness, Esq. SPR17/1294 Page 3 September 28, 2017 per hour; therefore, the School District has assessed the maximum allowable rate of $25.00 per hour for segregation and redaction. See 950 C.M.R 32.07(2)(m)(3). Your September 6th letter states that the bulk of the assessed time is for search and segregation, but you have already stated that the IT Director will conduct the search and compile the records. You also state that the review of records for redactions will be completed by either Superintendent Clenchy or yourself. Please be advised, "search time" includes compiling the records; "segregation time" is the time necessary to review records for exempt materials, and "redaction time" is the time necessary to actually delete or expurgate the exempt material from the record. Therefore, I find that it is still unclear from your September letter how much time will actually be assessed for the "segregation and redaction" of the records by either Superintendent Clenchy or yourself, and how much time is being assessed for the IT Director to "search" for all the records. See 950 C.M.R. 32.02 (Definitions). ih In its July 1 letter, the School District clarified its June 6th estimate by revealing the time for search, segregation and redaction per request number. The estimate's total cost for providing the records is $1,000, which is forty 40 hours oftime at $25.00 per hour. The number of hours ranged from minutes to twenty hours per Request Number. In contrast, your September 6th letter states that the bulk of the time necessary to comply with the multi-part request is 36 hours. It is still unclear why it is necessary for the School District to spend a total of 36-40 hours of time to search for, and then segregate and redact the records. It is unclear whether the School District could search for and compile the records in a more efficient and faster manner. You have informed Mr. King and this office that each search for the records would take approximately 8 hours each. By the School District's calculation, the total amount of time to complete Mr. King's request is 5 days of 7. to 8 hours per day. Therefore, I find that the School District has not provided enough clarity to support the number of hours to complete Mr. King's request, and must provide another response to support its estimated hours for this public records request. Order Accordingly, the School District is hereby ordered to provide Mr. King with a response to the request and the number of hours assessed for search, and segregation and redaction, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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.

Kerry Regan Jenness, Esq. SPR17/1294 Page4 September 28, 2017 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: George P. King, Jr. Patricia Marone