George P. King, Jr. v. Nashoba Regional School District (SPR 20180843)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 22, 2018 SPRlS/843 Kevin S. Freytag, Esq. Murphy, Hesse, Toomey & Lehane, P.C. 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Freytag: I have received the petition of George P. King, Jr. appealing the response of the Nashoba Regional School District (School District) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on May 22, 2018, Mr. King requested the following records: 1. A copy of any termination/separation/settlement agreements made with any employee of the Nashoba Regional School District that have been signed since December 14, 2016. 2. A copy of the detailed invoice and work product from the engagement of Barbara Durant to review Nashoba finances in or about the time period of June 2016. 3. An itemized list of legal expenditures in FY 2018 to date, broken down by matter for any matter that exceeds $2,000. 4. A digital copy of the complete results of the staff climate survey conducted by the school committee in the Spring of 2017. 5. All emails, text messages or other written or electronic communication to or from Brooke Clenchy, to or from Charlotte Murray (formerly Charlotte Derkiscz) between September 2016 and September 2017. The School District responded on June 6, 2018 by providing certain records responsive to requests 1 and 2, indicated it does not possess records responsive to request 3, referred to Exemption (b) of the Public Records Law and provided a fee estimate for the production of records responsive to request 4, and denied access to records responsive to request 5. Mr. King appealed and SPR18/843 was opened. It should be noted that this request is the subject of a petition submitted by the School (SPRl 8/887). A separate determination will be issued for SPRl 8/887. 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

Kevin S. Freytag, Esq. SPR18/843 Page 2 June 22, 2018 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, § lO(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In his appeal petition, Mr. King objects to various portions of the School District's response. Request 1 In response to request 1, the School District indicates it is "in possession of one public record that is responsive to this request. That public record is the agreement between the School District and George P. King, Jr. That record is hereby produced." In his appeal petition Mr. King notes "[b] y knowledge and believe there are other instances of employees signing a resignation agreement and being paid beyond the date of separation. The District has the obligation to release said agreements." The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). In light of Mr. King's appeal, the School District must confirm whether it possesses additional records responsive to request 1. See G. L. c. 66, § lO(b)(ii). Request 2 In response to request 2 the School District indicates it is "in possession of one public record that is responsive to this request. That record is hereby produced." Mr. King notes "[t]he District presented the invoice for this report, but not the work product. The District is obligated

Kevin S. Freytag, Esq. SPR18/843 Page 3 June 22, 2018 to retain the work product for six years as it was a report on the financial status of the District. The District must release the report." The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). Whereas Mr. King's request is for "[a] copy of the detailed invoice and work product from the engagement of Barbara Durant. ... ," the School District must confirm whether it possesses additional records responsive to request 2 ( emphasis added). See G. L. c. 66, § lO(b )(ii). Request 3 In response to request 3 the School asserts it "is not in possession of any public records that are responsive to this request." You indicate that "the School District does not have any obligation under M.G.L. c. 66, § lO(a) to create records that may be responsive to a public records request. Accordingly, no materials arc produced in response to this request." Mr. King asserts "[t]he request was not to create a record. The billing cover sheet for each legal bill has the information requested has to the basic billing. Last year when this was requested the District released the information in spreadsheet form. If they choose to release copies of the bill that is acceptable, but the information is decidedly public and the amount paid for legal fees must be provided." Whereas Mr. King clarified that releasing copies of the bills is acceptable to him, the School District must confirm whether it possesses additional records that contain the underlying information responsive to request 3. See G. L. c. 66, § lO(a), (b)(ii). Request 4 In response to request 4, the School District cites Exemption (b) and asserts "[w]e will not provide the results of the staff climate survey conducted by the school committee in the Spring of 2017 in order to ensure the School District's ability to properly perform its necessary governmental function of, among other things, educating students in the School District." You further note that the "Survey itself provided that the staff's responses would be kept confidential. Although the staff was not required to, and did not, include their names in response to the survey, they did provide information from which their identities could be ascertained (i.e. location of employment, years employed by the School District etc.). Maintaining the confidentiality of the staff's responses encourages the staff to respond to future surveys with candor. The release of the survey would likely have a chilling effect on those responses." In further support of is Exemption (b) claim, the School argues "[i]n order to properly perform the School District's function of educating students in the School District, the School District must be able to obtain truthful and candid feedback from its staff regarding its personnel rules and practices and the working conditions within the School District. That feedback can then be used to revise, develop, and/or implement new internal personnel rules, practices, and policies

Kevin S. Freytag, Esq. SPR18/843 Page4 June 22, 2018 in the School District that may enhance the School District's ability to educate its students. Therefore, the survey is material related solely to the School District's internal personnel rules and practices and must be withheld to ensure the proper performance of the School District's necessary governmental function. Therefore, the complete results of the staff climate survey conducted by the school committee in the Spring of 2017 will not be produced." With respect to providing segregable portions of the responsive records, you note "the School District is willing to redact those portions of the survey that may be used to ascertain the identity of the individuals that completed the survey and then produce the redacted version of the survey. The redacted version of the survey will consist primarily of charts and graphs that depict summaries of the data collected by the survey." The School District provides a fee estimate of $50 for the production of this record, which is comprised of two hours "to redact the results of the survey, including any personal identifying information or individual responses" at an hourly rate of $25 per hour. You further note that this estimate "is based cin the number of questions contained in the survey, i.e. 125" and that "[b]ecause the total population of all three towns in the school district combined is less than 20,000, you will be charged for the first two hours of time pursuant to 950 CMR 32.07(2)(m)(2)." The ability to assess this fee is one of the issues being reviewed as part of the School District's petition (SPRl 8/887). Please refer to the determination in SPRl 8/887 for analysis of this issue. Request 5 In response to request 5, the School District asserts "[t]his request appears to seek the production of e-mails between Brooke Clenchy and Charlotte Murray (formerly Charlotte Derkiscz). Ms. Murray raised concerns regarding Mr. King to the School District. It therefore appears that this request is designed for the sole purposes of intimidating and or harassing Ms. Murray. Accordingly, no documents are being produced in response to this request." Mr. King objects to this response. Whether the School District is required to produce records responsive to request 5 is one of the issues being reviewed as part of the School District's petition (SPRl 8/887). Please refer to the determination in SPRl 8/887 for analysis of this issue. Conclusion Accordingly, the School District is ordered to provide Mr. King a response to the request in a manner consistent with this order, the Public Records Law and its Regulations within ten 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.

Kevin S. Freytag, Esq. SPR18/843 Page 5 June 22, 2018 Sincerely, ~ u r r ~ Supervisor of Records cc: George P. King, Jr.