Gerard F. Mackin, Jr. v. Weymouth, Town of - Public Schools (SPR 20181726)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 4, 2018 SPRlS/1726 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 Attorney Gerard F. Mackin, Jr. appealing the response of the Weymouth Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on September 12, 2018 and September 19, 2018, Attorney Mackin requested copies 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 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 E. Curtis-Whipple SPR18/1726 Page 2 December 4, 2018 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 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;

Dr. Jennifer E. Curtis-Whipple SPR18/1726 Page 3 December 4, 2018 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. Prior appeals-SPRJS/1453; SPRJS/1686 The requested records were the subject of two prior appeals. See SPRIS/1453 and SPR18/1686 Determinations of the Supervisor of Records (Supervisor) (October 16, 2018 and November 28, 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, on October 161 I ordered \ the School to provide Attorney 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. On October 26, 2018, the School provided Attorney Mackin with a supplemental response regarding my October 16th determination on SPRIS/1453, and the School revised its fee estimate from $3,887.50 to $2,675.00. The School informed Attorney Mackin that it will not charge the first two hours for compiling, segregating, redacting and reproducing the requested documents for a total for $2,575.00. Attorney Mackin appealed the School's October 26th response and revised estimate, and as a result SPRI 8/1686 was opened. In my November 281h determination regarding SPRI 8/1686, I found the School had not met its burden of specificity in its October 26th fee estimate of explaining whether the $25.00 hourly rate to assess fees for the tasks necessary in providing records was the lowest paid hourly rate of the employees capable for each of the tasks. I also found that the School did not meet its burden of specificity in assessing fees for segregation and redaction of requested records that may contain content that is restricted by the Family Educational Privacy Act (FERP A), G. L. c. 71, § 34E and G. L. c. 149, § 52C, as those statutes operate through Exemption (a). Finally, I found that the School may not assess fees for segregation and redaction under Exemption ( c ), as it does not appear that the School filed a petition with the Supervisor to do so. Accordingly, I ordered the School to provide Attorney Mackin with a supplemental response within ten (10) business days of my November 28th determination to address the fees for segregation and redaction and the statutes claimed to assess those fees. See SPRI 8/1686. Current appeal - SPRJ 8/1726 Attorney Mackin filed his November 17, 2018 petition concerning the issues in the current appeal via email prior to the issuance of the Records Access Officer (RAO)'s response to my November 28th determination regarding the same requested records. In his Saturday,

Dr. Jennifer E. Curtis-Whipple SPR18/1726 Page 4 December 4, 2018 November 1i h emails at 1 :41 PM and 4:46 PM and received by this office on Monday, November 19til, Attorney Mackin seeks an order from the Supervisor directing the RAO to respond in more detail concerning the School's October 29, 2018 responses. A review of the School's October 29th responses reveals that the School's responses pertain to the identical requests made by Attorney Mackin on September 12th and September 19th. See Request Numbers 7, 10, 12, 13, 14, 15, 16 and 17 and appeals SPR18/1453 and SPR18/1686. The School previously responded on October 26th to all 17 items requested and it provided a fee estimate for all the records in the School's possession that are responsive to those requests. I note that the School's October 26th supplemental response was provided in response to my October 16th determination pertaining to the identical requests made on September 12th and September 19th. (Requests Numbered 1-17). As a result of the School's October 26th fee estimate for the September requests, Attorney Mackin now seeks to break up his requests into eight separate requests. In his November 1i h email at 1 :41 PM, Attorney Mackin states with regard to the October 16th emails between 4: 11 PM and 4:21 PM, "I am dividing my requests into smaller items to obtain the benefit of the 2 hour free response provided in [the Public Records Law]." It is Attorney Mackin's contention that where several of the requests were separately estimated to take 2 hours or less to search for and to segregate, the School should provide the individually requested items for free. In his November 1i h email to the School at 4:46 PM, Attorney Mackin asserts, "I object to the renewed claim of exemption from disclosure under [the Public Records Law] since it is unsupported by any factual basis .. .I have a right, in my opinion, to submit repetitive requests because of the exorbitant charges which the RAO is, in my opinion, trying to impose to deflect the exercise of my petitioning activity." Attorney Mackin further states, "[i]n other words, the claim of exemption is improperly inflating the cost of compliance and SO, I have divided my requests so that the price will be lowered since the first 2 hours are free. If, I'm not allowed to divide my requests, I anticipate that someone else will make very similar requests ... Please respond by 11-16-18 or I' 11 file more appeals." Attorney Mackin should be advised that my November 2th determination of SPRl 8/1686 orders the School to provide more information concerning its fee for segregation and redaction of any information that is restricted by the statutes cited to account for the segregation and redaction fees. Whereas the School has ten (10) business days from the date of my November 28th determination to provide a supplemental response regarding the fee for segregation and redaction, I decline to opine on the fee for segregation and redaction in this determination. The crux of Attorney Mackin's November 1i h petition is that he should not be charged any fees, because on October 16th he separated his September public records request for 17 combined items to 8 separate requests in order to take advantage of the two hours that the School must waive fees. However, in light of Attorney Mackin's submission of identical requests in September and October, for identical records, subject matter, and time periods sought, I find that the School may continue to consolidate Attorney Mackin' s 17 itemized items into one request,

Dr. Jennifer E. Curtis-Whipple SPR18/1726 Page 5 December 4, 2018 not separate requests. Attorney Mackin may not portion out a request in order to circumvent the fees allowed by the Public Records Law. See Idaho Code§ 74-102(11) (A requester may not file multiple requests for public records solely to avoid payment of fees). Conclusion Accordingly, I find that the School does not have to break the request into two hour increments for the purpose of waiving fees when determining the fee estimate for providing these requested documents. This office encourages Attorney Mackin and the School to continue to communicate to facilitate providing the records more efficiently and affordably. See G. L. c. 66, § 1O (b )(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § lO(d)(iv)( 4). Sincerely, Rebecca S. Murray Supervisor of Records cc: Gerard F. Mackin, Jr., Esq. Joseph Callahan, Esq.