George P. King, Jr. v. Nashoba Regional School District (SPR 20180887)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 22, 2018 SPRlS/887 Kevin Freytag, Esq. Murphy, Hesse, Toomey, & Lehane LLP 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 I have received your petition on behalf of the Nashoba Regional School District (School District) seeking relief from its obligation to produce responsive records as well as permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § lO(c); G. L. c. 66, § lO(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the School District furnished a copy of this petition to the requestor. G. L. c. 66, § lO(c), § 10(d)(iv)(2). In a request received by the School District on May 22, 2018, George P. King, Jr. requested five categories of public records. Please note this request is the subject of an appeal with this office (SPR18/843). The requests at issue in this petition are request 5 for "[a]ll 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" and request 4 for "[a] digital copy of the complete results of the staff climate survey conducted by the school committee in Spring of 2017." 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

Kevin Freytag, Esq. SPR18/887 Page 2 June 22, 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. G. L. c. 66, § IO(c). 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 obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Request for relieff rom obligation to produce responsive records The School District requests "the Supervisor relieve the School District from the obligation to provide the materials requested in Request No. 5." The School District claims Mr. King's request "is an attempt to harass Ms. Murray" because she "raised certain concerns regarding Mr. King during his employment." In support of this claim, the School District references a May 22, 2017 request for similar records and explains "Mr. King has submitted duplicative requests for the same materials and appears to be attempting to harass Ms. Murray as a result of her actions." The School District cites Erickson v. Exec. Office of Envtl. Affairs, 2006 Mass. Super LEXIS 476 (Aug. 4, 2006) to support its position. In Erickson, the plaintiff requested dozens of public records from the defendant which the court found to be overly broad and, in some cases, unlimited in time. The plaintiff was also found to be abusive to the Court and its staff as well as harassing to the opposing party. Id. However, Mr. King's request is for a certain time period and identifies specific types ofrecords he is seeking. In a letter dated June 18, 2018, Mr. King notes he has a blog that discusses matters related to the School District. Based on the information provided in the June 15th petition, I find that the School District has not met its burden to establish that Mr. King's request is frivolous or designed to intimidate or harass in a manner similar to the requests described in Erickson. I also find the School District 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 § 10(c ). Therefore, I decline to relieve the School District from the obligation to provide the records requested in request 5.

Kevin Freytag, Esq. SPR18/887 Page 3 June 22, 2018 Petitions for ability to assess fees The School District also seeks permission to be allowed to charge for time spent segregating and/or redacting records responsive to request 4. 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. 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 (Supervisor) 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 Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10(d )(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. Id. The School District cites Exemption (b) and asserts the "[t]he 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 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

Kevin Freytag, Esq. SPR18/887 Page 4 June 22, 2018 and practices and must be withheld to ensure the proper performance of the School District's necessary governmental function." 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's petition seeks permission to be allowed to charge Mr. King "a prorated fee of $25 per hour to redact the survey." The School District estimates it will take approximately two hours to redact the results of the survey. You note this estimate "is primarily based on the number of questions contained in the survey, i.e. 125." Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. C. 4, § 7 (26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption, however, is to relieve agencies of the burden of assembling and maintaining for public inspection matters in which the public cannot reasonably be expected to have a legitimate interest. For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. I find that the School District has not met its burden to show how the potentially redacted information within the responsive surveys relate "solely to internal personnel rules and practices of the government unit," nor has it shown how performance of its necessary government function requires such withholding. ( emphasis added). As a result, I find the School District has not demonstrated that the request could not have been prudently completed without segregation and/or redaction. See G. L. c. 66, § lO(d)(iv). With respect to timeframes for submitting a fee petitions, 950 C.M.R. 32.06(4)(g) provides that "petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records." It appears the School District received the request on May 22nd and submitted its petition on June 15t\ more than ten business days after receipt of the request.

Kevin Freytag, Esq. SPR18/887 Page 5 June 22, 2018 In light of the above, I decline to grant the School District's petition for permission to be allowed to charge for time spent segregating and redacting records responsive to request 4. Conclusion For the reasons discussed above, I decline to grant the School District's petition for relief from responding to request 5. See G. L. c. 66, § lO(c). I also decline to grant the School District's petition for permission to be allowed to charge for time spent segregating and redacting records responsive to request 4. See G. L. c. 66, § 10(d )(iv). The School District must provide Mr. King a response in a manner consistent with the determination in the appeal related to this request, SPR 18/84 3. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: George P. King, Jr.