Frank Sivo v. Hopkinton, Town of - Public Schools (SPR 20171575)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 20, 2017 SPR17/1575 Carol Ann Cavanaugh, PhD Assistant Superintendent Town of Hopkinton Public Schools 89 Hayden Rowe Street Hopkinton, MA 01748 Dear Dr. Cavanaugh: I have received the petition of Frank Sivo appealing the response of the Town of Hopkinton Public Schools (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Sivo requested documents concerning the investigations and communications of three individuals. In a response dated October 27, 2017, the School informed Mr. Sivo that they are withholding documents related to the investigation pursuant to Exemption (e) of the Public Records Law. G. L. c. 4, § 7(26)(e). The School further informed Mr. Sivo that after discussions with the individuals identified, the School believes that there are no electronic mail communications responsive to his request. Unsatisfied with the School's response, Mr. Sivo petition this office and this appeal was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § IO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Dr. Carol Cavanaugh SPR17/1575 Page 2 November 20, 2017 Exemption (e) In its October 2ih response, the School asserted that the notes taken in the course of the investigation may be withheld pursuant to Exemption (e) of the Public Records Law. Exemption (e) applies to: notebooks and other materials prepared by an employee of the commonwealth which are personal to them and not maintained as part of the files of the governmental unit. G. L. c. 4, § 7 (26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption ( e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as "personal" to the employee, such as notes created to refresh an employee's memory of a work-related activity or notes created by an employee to assist in preparing reports for other employees of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption ( e ). The second criterion of Exemption ( e) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature; such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption ( e) and the Department may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. In his petition to this office dated November 3, 2017 and copied to the School, Mr. Sivo states that the notes were taken during interviews with him and his wife while the Director of Student Services (Director) was investigating a claim against the School. Mr. Sivo asserts that the Director memorialized the conversation by entering notes into the office computer. In a supplemental response dated November 10, 2017 submitted to this office after receipt of Mr. Sivo's petition, the School's Legal Counsel, Nancy J. Campany of Murphy, Lamere & Murphy, P.C., reiterates the School's October response and addresses the issues in Mr. Sivo's appeal. Attorney Campany expresses that the notes were made and retained personally by the Director, and were only generated as a memory aid to assist the Director in the preparation of a report. Attorney Campany states, "[a ] though some or all of her notes may have been made electronically for ease and to permit contemporaneous editing for accuracy, they are not intended to be permanently maintained in the District files. We further note that the notes

Dr. Carol Cavanaugh SPRl 7/1575 Page 3 November 20, 2017 were not appended to or incorporated in any report issued." Therefore, the School contends the Director's notes meet the criteria to be withheld under Exemption (e). On November 16th Attorney Campany informed an attorney in the Public Records Division that the notes are neither a recording nor transcript, as Mr. Sivo has stated in his petition. It is my understanding that the Director conducted an informal review of the complaint, and took the notes in order to refresh the Director's memory so that a summary report may be drafted to address the School's review of the claim. The School does not have the notes in their files, nor were they required to retain the notes in their files as part of their review of the matter. It was explained to this office that the summary report is a required document and must be generated as a result of the School's review of the claim. Mr. Sivo was provided with a copy of the summary report on October 19, 2017 by the Director. Fees -Municipalities 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. Id. 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). Further, 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). The School fee estimate On October 27th the School provided a response to Mr. Sivo that included a fee estimate for the cost of searching, compiling, segregating and redacting email communications based on the School's suggested time-frame of 4 weeks, and a search term of "Sivo." The School estimates these tasks to take 5 hours at $25.00 per hour for a total cost of $125.00. The School's response explains that the Town of Hopkinton has a population ofless than "20,000 persons," therefore, the School is permitted to charge for the full 5 hours.

Dr. Carol Cavanaugh SPRI 7/1575 Page4 November 20, 2017 In consulting with the persons identified in Mr. Sivo's request, the School found that these individuals do not believe there are any email records responsive to the request. However, in its response, the School informed Mr. Sivo that a search could be conducted by its Information Technology Department personnel (IT) by running a search of all three email accounts with the search for electronic messages from July 25, 2017 to the present. In its October 2ih letter and November 10th letters, the School suggests that Mr. Sivo produce specific parameters for his request to help lower costs. The School also explains it based its hourly rate on a $25.00 maximum that may be charged by a municipality, because it is a lower rate than a member of the IT Department and that of the senior-level employee's whose email accounts would be searched. Further, the $25.00 rate is lower than the rate of the Assistant Superintendent's hourly rate of $65.00 per hour. The School also notes in its November 10th response that the request for the communications that relate to a claim concerning the School would require segregation and likely redaction of certain information that is restricted by law. The School states that the emails are likely to contain identifying information about students and attorney-client privileged information. Conclusion Whereas the School's November 10th response addresses the issues raised in Mr. Sivo's appeal, I will consider this appeal closed. Mr. Sivo may appeal this response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Frank Sivo Nancy Campany, Esq.