John Podesta v. Greater Lowell Technical High School (SPR 20180145)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor o f RecordF February 9,2018 SPR181145 Leslie C. Carey Long & DiPietro, LLP Greater Lowell Technical High School 175 Derby Street Hingham, MA 02043 Dear Attorney Carey: I have received your petition on behalf of the Greater Lowell Technical High School (School) seeking relief from its obligation to produce responsive records, an extension of time to produce records, and a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, 5 10(c); G. L. c. 66, 5 lO(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, 5 10(c). In a request received by the School on January 25,201 8, John Podesta requested emails sent by five different staff members "[glroup emails sent out by Math & Science cluster chairperson Carol Chisolm, specifically those with the terms 'Weekly Update' sent between August 28,2017 and the date this request is fulfilled." Petitions for an extension of time 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; . 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

Leslie C. Carey Page 2 February 9,2018 (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. If the Supervisor determines that the request is part of a 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 Id. obligation to provide copies of the records sought. 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 C.M.R. 36.06(4)(b). Request for relieflorn obligation to produce responsive records The School is requesting that the Supervisor waives "any obligation of Greater Lowell's Records Access Officer to respond to the attached public records request recently made by the subject Requestor." The School states that "the requestors' requests are contemporaneous, frivolous and designed to intimidate or harass Greater Lowell." In support of this claim, the School explains "two pseudonym-named requestors have submitted nineteen (19) public records requests and two (2) appeals to Greater Lowell over the past nine (9) weeks." The School asserts these "twelve requests and two appeals were made over a mere 38.5 workdays (not excluding snow days), an average of once every 1.83 working days." Further, the School says "[tlhe requests seem to vacillate between targeting a specific employee and inquiring about trivial, unrelated matters such as annual toilet paper expenditures." The School claims "the requestors are purposely engaging in a voluminous series of separate requests to avoid search and segregation fees and to keep Greater Lowell faced with a near-constant sheam of deadlines." The School indicates "[dlespite the requestors' stating that the requests serve a public purpose and will be publicly posted at MucltRoclt.com, the requests are not actually intended for the broad dissemination of information to the public about actual or alleged government activity or transparency. The requests are in fact being wielded as a harassment tool by, in my client's belief, a disgruntled individual or individuals with an ax to grind." Based on the information provided in the January petition, I find that the Department has not met its burden to demonstrate "the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity" as required by G. L. c. 66, § IO(c).

Leslie C. Carey Page 3 February 9,2018 Extension oftime to produce responsive records In the alternative to relief from the obligation to produce responsive records, the School requests "that the response timeframe for this request be extended to thirty (30) school days from the date of the request." In support of an extension, the School states "[tlhis is certainly a situation where the receipt of multiple requests from the same requestor is unduly burdening the other responsibilities of the municipality, as contemplated in G.L. c. 66, sec. 10(c)." They say it has "reached a point where the obligation to respond to these repeated requests within a short timeframe is undermining and interfering with its primary and most essential municipal function educating students." - They also indicate "Secretary to the Superintendent Cheryl Gosselin alone has been spending an average of two to three hours each workday managing and responding to the requestors' requests. These requests have also necessitated many additional hours of work by Superintendent Joseph Mastrocola, information technology professionals and legal counsel, creating considerable expense for Greater Lowell." I find that in light of the volume of requests, the School has established good cause to permit an extension of time of 10 business days. G. L. c. 66, 5 lO(c)(i)-(iv). Petitions for ability to assess fees 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 Id. reflect the actual cost of complying with a particular request. Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the 5 municipality has 20,000 people or less. G. L. c. 66, lO(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 Id. per hour. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor under a petition under G. L. c. 66, 5 lO(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 under a petition under G. L. c. 66, 5 lO(d)(iv). See G. L. c. 66, 5 lO(d)(iii); 950 C.M.R. 32.06(4). The School states the requests are creating a "considerable expense for Greater Lowell." The School indicates "Greater Lowell has waived fees in connection with nearly all of the requestors' requests to date, despite incurring substantial related costs. The few fee estimates that

Leslie C. Carey Page 4 February 9,20 18 were imposed are nominal (ranging from $28.59 - $76.24), and do not even approach the actual costs to Greater Lowell stemming from these requests." Consequently, the School requests "that it may assess search and segregation fees from the start, without the two hour statutory grace period." Please be aware, the Supervisor does not possess the authority to allow a municipality with a population of 20,000 or more to assess a fee for the first 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. See G. L. c. 66, 5 lO(d)(iii). Conclusion For the reasons discussed above, the School is granted an extension of 10 business days to produce responsive records. The records must be provided consistent with the Public Records Law and its Access Regulations. The requestor may appeal the substantive nature of the School's February 2ndr esponse within ninety days. See 950 C.M.R. 32.08(1). Additionally, the requestor may seek judicial review of this decision by commencing a civil action in the superior court under G. L. c. 66, 5 10A(c). Sincerely, " Rebecca S. Murray Supervisor of Records cc: John Podesta