Kevin Bliss v. Leominster, City of - Public Schools (SPR 20190082)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 29, 2019 SPR19/082 Ned Pratt Office of Special Education & Pupil Personnel Town of Leominster Public Schools 24 Church Street Leominster, MA 01453 Dear Mr. Pratt: I have received the petition of Kevin Bliss appealing the response of the Town of Leominster - Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, via email on December 12, 2018, Mr. Bliss requested electronic copies of: 1. The school policies on advertising and distribution of flyers to the schools and student body for review [by] parents and guardians; 2. Name and address of the law firm representing the [School] and amount to date of paid budget funds to this firm for litigation cases since [Paula Deacon has taken over as Superintendent]; 3. The contracts allowing all school district PTO's to form partnerships and authorize a bidding process to distribute advertising to the student body to bring home to parents and guardians; 4. Emails between Kerry Conway, past PTO president; Marylyn Cohran, present PTO president; Ned Pratt; and Paula Deacon, Superintendent with focus on partnerships with community businesses and the bidding process; also any conversation [that includes] Kevin Bliss; and 5. All cost[ s] associated with the ransom and replacing the past district computer system with the new Google based system. In a January 8, 2019 email, you indicate that the School will calculate costs and send the costs to Mr. Bliss. By email on January li\ Jenny Mundie provided Mr. Bliss with a copy of the School's policy regarding flyers, in response to Mr. Bliss's Request Number 1. When no records or further response were provided by the School, Mr. Bliss petitioned the Supervisor of Records (Supervisor). As a result, this administrative appeal was opened. 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

Ned Pratt SPR19/082 Page 2 January 29, 2019 In his petition, Mr. Bliss objects to Mr. Pratt's directive that all public records requests pertaining to the School must be sent to Mr. Pratt. Mr. Bliss contends, "[a]ll my requests have been sent to the Superintendent...[s]ince my public record request involves issues that the Superintendent of the [School] needs to address along with my public records request and I have in the past always sent them here." Mr. Bliss also takes issue with the costs associated with his requests. He suggests that some of the records should be posted to the School website, and that the emails can be easily accessed through the use of "meta tag." Response Time On January 14, 2019, the School provided Mr. Bliss with a response, including a fee estimate totaling $3,284.43. This January 14th response also asserts, "[p]lease note that any and all requests for records should be directed to the Keeper of Records. Any requests sent to district personnel other than the Keeper of the Records will not be considered a valid request under the Massachusetts Public Records Law." Each agency and municipality shall post in a conspicuous location at its offices and on its website, if any, the name, title, business address, business telephone number and business email address of each records access officer (RAO). See G. L. c. 66, § 6A(c ); see also 950 C.M.R. 32.04(4). It is unclear whether the School has posted in its offices and on its website, the name(s) and contact information of the School's RAO(s). Moreover, under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within 10 business days of receipt of the request. G. L. c. 66, § 1O (a)-(b ). The response may contain, among other things, an offer to provide the records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § IO(b). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. All records custodians must comply with both the Public Records Law and Regulations with respect to the timeliness of response. The School must respond to all public records requests within 10 business days. G. L. c. 66, § IO(a)-(b). G. L. c. 66, § IO(e) provides that "[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b)." It is unclear whether the School complied with G. L. c. 66, § IO(e) and 950 C.M.R. 32.06(2)(c). Therefore, I find the ih School must demonstrate whether it responded to the December 1 request in compliance with G. L. c. 66, § IO(e) and 950 C.M.R. 32.06(2)(c).

Ned Pratt SPR19/082 Page 3 January 29, 2019 Fee estimates The School provided a January 14th fee estimate for the cost of providing the records responsive to Mr. Bliss's Request Numbers 2, 4 and 5 for a total cost of $3,284.43. 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, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. The School's estimate does not indicate whether any of the requested records are freely available for Mr. Bliss to inspect. Municipalities may not assess a fee for the first 2 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, § lO(d)(iii). The School's January 14th estimate does not indicate whether it waived the first 2 hours of employee time, and whether it was required to do so when it provided the estimate to Mr. Bliss. Your estimate provides the amount of time that will be expended per requested item, but does not breakdown the time per task. 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. G. L. c. 66, § 10(d )(iii). However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records through a petition filed under G. L. c. 66, § 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 of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); see also 950 C.M.R. 32.06(4). Request Number 2 (law firm and litigation costs) The School informed Mr. Bliss that Mirick O'Connell is the law firm that represented the School; however, the School did not provide the amount of funds paid from the budget to the firm for litigation cases. Your January 14th estimate assessed 5 hours at $18.57 per hour for a total of $55.71 to provide the records responsive to Request Number 2. It is unclear how the records regarding the associated costs are organized, why it is necessary that the School expend 5 hours of time to search and compile the records, and whether $18.57 is the lowest paid hourly rate for the employee capable of completing the tasks necessary to produce the records. Request Number 4 (emails); Request Number 5 (ransom and replacement of computer system) The School assessed 12 hours at $250.00 per hour for Clearcom, a private data company, to produce the emails responsive to Request Number 4, at a total cost of $3,000. The School may

Ned Pratt SPR19/082 Page 4 January 29, 2019 only assess an hourly rate equal to or less than the hourly rate of the lowest paid employee who has the necessary skill required to complete the tasks necessary to provide the requested records, but no more than $25 per hour. G. L. c. 66, § lO(d)(iii). However, a municipality may charge more than $25 per hour if such rate is approved by the Supervisor through a petition filed under G. L. c. 66, § lO(d)(iv). To the best of my knowledge, the School has not filed a petition to charge $250.00 per hour to search for and compile the responsive email records. Therefore, the School must revise the hourly rate assessed to provide the emails, and explain why it is necessary to expend 12 hours to complete the tasks necessary to search for and compile the emails. The School assessed 3 hours of time at $18.57 per hour to produce the records responsive to Request Number 5, which pertains to the ransom of the computer system, for a total of $5 5. 71. In addition, the School assessed 5 hours of time at $18.57 per hour to research for records responsive to Request Number 5 which pertains to the replacement of the computer system for a total of $92.85. Here, as with the School's estimate for Request Number 2, the School has not stated whether $18.57 per hour is the lowest paid hourly rate of the employee who is capable of performing the tasks necessary to produce the records. Nor has the School explained why it is necessary to expend 5 hours of time to provide the records responsive to Request Number 5. Fees for segregation and redaction ofr ecords Your estimate indicates, "[t]he [School] will provide the requested documents or portions of those documents that are not specifically or by necessary implication exempted by statute." Citing M.G.L. c. 4, § 7(26)(a); G. L. c. 71, §§ 34D, 34E; Family Educational Rights and Privacy Act (FERP A), 20 U.S.C. § 1232g and 34 C.F.R. Part 99; and Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 and 34 C.F.R. Part 303. The School asserts that it may withhold or redact certain of the responsive records due to personally identifying information pertaining to students under the referenced state and federal statutes and regulations, as well as the ruling in, Champa v. Weston Public Schools, 473 Mass. 86 (2015). The School is advised, 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 under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); see also 950 CMR 32.06(4 ). Given that the records may contain information restricted by law under Exemption (a), the School may assess fees for segregation and redaction of the records. In his request, Mr. Bliss informed the School that he would like the records provided to him by electronic means, such as through email. However, the School only provided Mr. Bliss with the cost of three (3) hours of printing at $14.34 per hour for a total cost of $43.02. "The RAO shall provide the public records to a requestor by electronic means unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in a usable electronic form." G. L. c. 66, § 6A(d). The School must provide the records electronically, or explain why the School does not have the ability to do so.

Ned Pratt SPR19/082 Page 5 January 29, 2019 Your January response asserts, "[t]he above estimate is due, in part, to the broad scope of your request. If you elect to narrow the scope of your request, please notify the [School] in writing and the [School] will provide you with an updated cost estimate for any such revised request." The School advises Mr. Bliss that he may want to narrow his request to reduce the cost; however, the School did not offer Mr. Bliss any suggestions as to how he could modify the scope of the request that would enable the municipality to produce records sought more efficiently and affordably. G. L. c. 66, § lO(b)(iii). For the reasons discussed above, I find the School must revise its estimate or provide further explanation of how the fee assessed in its January 14th response is provided consistent with G. L. c. 66, § 10(d ). Request Number 3 (contract-PTOs and bidding process) The School's January 14th response did not address Mr. Bliss's request for "[a] copy of the contracts allowing all school district PTO's to form partnerships and authorize a bidding process to distribute advertising to the student body to bring home to parents and guardians." A records custodian must identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves. See G. L. c. 66, § lO(b)(ii), (iii). The School must clarify whether it has records responsive to Mr. Bliss's Request Number 3 in its possession, custody or control. Conclusion Accordingly, the School is ordered to provide a response to Mr. Bliss in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Kevin Bliss Paula Deacon, Superintendent