Gerard F. Mackin, Jr. v. Weymouth, Town of - Public Schools (SPR 20181686)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 28, 2018 SPRlS/1686 Jennifer E. Curtis-Whipple, Ed.D. Superintendent Town of Weymouth Public Schools 111 Middle Street Weymouth, MA 02189 Dear Dr. Curtis-Whipple: I have received the petition of Gerard F. Mackin, Jr. appealing the response of the Town of Weymouth Public Schools (School) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Mackin requested a copy of: 1. Any and all documents whether paper or electronic in form constituting, referring or relating to the sale, gifts, rebates, couponing or other distribution by BSN Sports to the Weymouth School Department, and any employee including but not limited to Principal Alan J. Strauss during the fiscal years 2018 and 2019. Including but not limited to sales or distributions to any Booster group of parents and/or supporters; 2. Any and all documents whether paper or electronic in form constituting, referring or relating to invoices submitted by BSN Sports to the [School], Alan J. Strauss or any Booster organization as referred to above during the fiscal years 2018 and 2019; 3. Any check or other financial document constituting, referring or relating to payment to BSN Sports for any invoice referred to in request 2 above; 4. Any and all documents whether paper or electronic in form constituting, referring or relating to approval or authorization by the Weymouth School Committee or any of its members or employees for payment to BSN or any other person or entity of the invoices referred to in request 2 above; 5. Any and all documents whether paper or electronic in form constituting, referring or relating to any or all communications, paper, electronic or any other mode between or among the Weymouth School Committee, any of its members, Alan J. Strauss, Superintendent Curtis-Whipple, any employee of the Weymouth School Department and BSN Sports relating or referring to the documents or actions referred to in requests 1, 2, 3 or 4 above; 6. Any and all documents whether paper or electronic in form constituting, referring or relating to the disposition by gift or otherwise, of any items of clothing, sports equipment or paraphernalia received from BSN Sports during the fiscal years 2018 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. Jennifer Curtis-Whipple SPR18/1453 Page 2 November 28, 2018 and 2019; 7. Any vote taken, or other document made, by the WSC, authorizing the disposal of any item referred to in any of the preceding six requests from BSN which is no longer owned by the Weymouth School Department; 8. Any and all documents whether paper or electronic in form constituting, referring or relating to any communication between the Weymouth School Department, WSC, or any of its members, Alan J. Strauss, or any other employee of the Weymouth School Department with any Booster organization or the members thereof requesting or discussing money to pay for any items referred to in request 1 through 7 above; 9. Any and all documents whether paper or electronic in form constituting, referring or relating to communications with any employee of the Weymouth School Department regarding payment by such employee personally for any item of clothing, equipment or paraphernalia provided by BSN to the Weymouth School Department, Principal Strauss or any other employee of the Weymouth School Department; 10. Any and all documents whether paper or electronic in form constituting, referring or relating to communications from BSN asking for payment for any or all items referred to in requests 1-9 above, including any response made on behalf of the Weymouth School Committee, Alan J. Strauss or any other employee of the Weymouth School Department Booster organization; 11. Any and all documents whether paper or electronic in form constituting, referring or relating to payment made by any coach or employee of the Weymouth School Department for any item sold or in any way provided by BSN to the Weymouth School Department, the WSC, or any of its members, Alan J. Strauss or any other Weymouth School Department employee; 12. Any and all documents whether paper or electronic in form constituting, referring or relating to the disposition by the Weymouth SC, Weymouth School Department, Alan J. Strauss or any of its other employees of any items provided by BSN for fiscal years 2018 and 2019; including a statement of any criteria under which any items of clothing, equipment or paraphernalia acquired from BSN Sports were disposed of in fiscal years 2018 and 2019; 13. Any and all documents whether paper or electronic in form constituting, referring or relating to notices to students of the availability of any clothing, equipment or paraphernalia available to students as part of any rebate, gift, allowance or other refund of any name or description by BSN for items purchased from BSN during fiscal years 2018 and 2019; 14. The funding sources for all purchases by the Weymouth School Department or any of its employees for any items provided by BSN Sports in fiscal years 2018 and 2019; 15. Copies of all checks provided by Weymouth High School Booster groups for the payment of any BSN invoices in fiscal years 2018 and 2019; 16. A list of all free shoes provided by BSN to Weymouth High School and distributed by Principal Alan J. Strauss, along with the criteria used to determine the distribution of these items in fiscal years 2018 and 2019; and 17. A list of all Weymouth High School uniforms, or other gifts, distributed by Principal Strauss as senior gifts during the fiscal 2018 school year.

Dr. Jennifer Curtis-Whipple SPR18/1453 Page 3 November 28, 2018 Prior appeal-SPRJS/1453 The requested records were the subject of a prior appeal. See SPR18/1453 Determination of the Supervisor of Records (Supervisor) (October 16, 2018). In my October 16th determination, I found that the School's fee estimate did not detail how much time is allocated to each of the tasks necessary to provide the records; did not explain whether $25.00 per hour fee is the lowest paid employee capable of each of the tasks (search, compiling, segregation and redaction); and did not explain what state and/or federal laws apply to require segregation and/or redaction. As a result, I ordered the School to provide Mr. Mackin with a supplemental response and to revise its $3,887.50 fee estimate in a manner consistent with my order, the Public Records Law and its Regulations. The School's October 26, 2018 supplemental response/revised estimate On October 26t\ On October 26, 2018 the School provided Mr. Mackin with a supplemental response and revised its fee estimate from $3,887.50 to $2,675.00. The School's October 26th revised estimate and response states, "[w]e assess the lowest paid employee capable of performing these tasks to be $25.00 per hour. In accordance with this, we have estimated that it may take up to 105 hours to gather and review the information. We will not charge the first two hours for compiling, segregating, redacting and reproducing the requested documents for a total of $2,575.00. In addition, it is estimated that there will be 2000 pages produced at $0.05 per page for a total of $100.00. Upon your full payment of$2,675.00, your documents will be produced." As a result of the School's revised estimate, Mr. Mackin petitioned the Supervisor of Records (Supervisor), and the current appeal, SPR18/1686, was opened. In his petition to the Supervisor, Mr. Mackin objects to the School's fee for segregation and redaction of the records. He states, "The [records access officer] has not provided any factual statement as to how a request for information relating to the purchase of athletic equipment even remotely involves any of the statutes she cited." Fees for Segregation and Redaction 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). The segregation and redaction fees were assessed for Request 5. This request states: "any and all documents whether paper or electronic in form constituting, referring or relating to any or all communications, paper, electronic or any other mode between or among the Weymouth School Committee, any of its members, Alan J. Strauss, Superintendent Curtis-Whipple, any employee of the Weymouth School Department and BSN Sports relating or referring to the documents or actions referred to in requests 1, 2, 3 or 4 above"

Dr. Jennifer Curtis-Whipple SPR18/1453 Page 4 November 28, 2018 The School's October 26th estimate regarding segregation and redaction states: " .. .In accordance with M.G.L. 4, Section 7, cl 26(a) and (c), after each document is identified and segregated, each email/document will have to be reviewed individually to ensure the contents do not include information protected by state and Federal privacy laws, including but not limited to the following; Family Educational Privacy Act (FERPA), M.G.L. Chapter 71, section 34E and M.G. L. Chapter 149, section 52C. It is estimated that it will take 20 hours to segregate and 30 hours to review for redaction for a total of 53 hours." Segregation is defined as, "the time used to review records to determine what portions are subject to redaction or withholding under M.G.L. c. 4, § 7 or other legally applicable privileges." Redaction is defined as, "to delete, or otherwise expurgate that part of a public record this is exempt from disclosure under M.G. L. c. 4, § 7 or other legally applicable privileges from non exempt material." See 950 C.M.R. 32.02 (definitions). It is unclear from the October 26th estimate, whether the School intended to describe the 30 hours of time as simply, "redaction," whereas, the School has already assessed 20 hours for "segregation." The School should clarify these tasks in a supplemental response. Furthermore, the School assessed segregation and redaction for statutes that operate through Exemption (a) of the Public Records Law; however, the School did not provide sufficient information for this office to determine that segregation and redaction under FERPA , Student Records and the statute for personnel records held by an employer are applicable to the requested records. I find that the School must provide further details on why the School believes that information within the content of the records is restricted information under the state and federal laws cited. I find that the School has not met its burden of specificity in assessing fees for segregation and redaction of requested records that may contain content that is restricted by FERPA, G. L. c. 71, § 34E and G. L. c. 149, § 52C, as those statutes operate through Exemption (a). Order Accordingly, the School is ordered to provide Mr. Mackin with a response regarding its fees for segregation and redaction, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. ~~ Re6ecca S. Murra~ Supervisor of Records cc: Gerard F. Mackin, Jr.