Elisabeth Wallace v. Roxbury Prep Charter School (SPR 20190216)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 13, 2019 SPR19/0216 Oliver Truog Public Records Officer Roxbury Prep Charter School 206 Magnolia Street Dorchester, MA 02121 Dear Mr. Truog: I have received the petition of Elisabeth Wallace appealing the response of the Roxbury Prep Charter School (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on January 15, 2019, Ms. Wallace requested the following categories ofrecords: "l. Minutes of all meetings of the Roxbury Prep Board of Trustees from 2014 - 2019; 2. All correspondence in paper or electronic form to/from the Roxbury Prep Board of Trustees relating to siting Roxbury Prep High School at 361 Belgrade A venue in Roslindale, Boston, MA sent or received between 2014 and 2019; 3. From the years 2014 through 2019, any agreement or draft agreement presented to, discussed by or approved by the Roxbury Prep Board of Trustees to buy, sell, lease or rent any property on which to establish a location for Roxbury Prep High School; 4. From the years 2014 through 2019, any communication to or from the Roxbury Prep Board of Trustees regarding the buying, selling, leasing or renting of any property on which to establish a location for Roxbury Prep High School; 5. From the years 2014 through 2019, any communication, memoranda, emails or Analyses (written or electronic) presented to, discussed by or considered by the Roxbury Prep Board of Trustees regarding proposed sites on which to establish a location for Roxbury Prep High School; 6. Any agreement, draft agreement or correspondence in possession of Roxbury Prep or its Board of Trustees regarding Roxbury Prep Belgrade LLC; 7. Any agreement, draft agreement or correspondence between Roxbury Prep 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

Oliver Truog SPR19/0216 Page 2 February 13, 2019 its Board of Trustees and Uncommon Schools regarding the siting or establishment of Roxbury High School in Roslindale or West Roxbury, Boston MA; and 8. All correspondence in paper or electronic form to/from the Roxbury Prep Board of Trustees relating to Northwind Strategies." The School provided an initial response asking for clarification in regards to certain requests in order to ascertain the scope of the request and also provide a good faith cost estimate for producing the responsive records. Unsatisfied with the School's response, Ms. Wallace petitioned this office and this appeal, SPRl 9/0216, was opened as a result. While this appeal was pending, the School provided a supplemental response on February 6, 2019. Petitions to the Supervisor of Records Ms. Wallace is reminded that when appealing to the Supervisor of Records, the requestor "shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses ..." 950 C.M.R. 32.0S(l)(g). 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, § 1O (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. The School's initial response In its initial response, the School states that it is writing in order to ask Ms. Wallace " ... to clarify the scope of several of [her] requests, as [it] find[ s] a number of the requests to be vague and ambiguous."

Oliver Truog SPR19/0216 Page 3 February 13, 2019 With respect to requests 3, 4, 5, and 7, the School states that "[i]t appears that the majority of [Ms. Wallace's] requests relate to the potential siting of Roxbury Prep High School at 361 Belgrade Avenue in Roslindale, MA. However, from 2014 through 2019, the Roxbury Prep Board of Trustees entered into several leases for space out of which Roxbury Prep operated, or operates, on a short-term basis. These leases and the communications surrounding them are separate and unrelated to the potential siting of Roxbury Prep High School at 361 Belgrade Avenue." The School also states that "[r]equests 3, 4, 5, 7 are ambiguous and unclear as they do not make clear if [Ms. Wallace] is seeking any and all documents in the categories listed relating to any and all potential real estate transactions (including lease arrangements) involving Roxbury Prep High School during this broad time period, or simply those documents relating to a possible 361 Belgrade Avenue location." The School also indicates that it will not produce records exempt from the Public Records Law, that fall within the following categories of documents: "1. Internal communications relating to the development of policy positions by Roxbury Prep; 2. Proposals and bids to enter into any contract or agreement, until the time for the receipt of bids or proposals has expired; 3. Communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person or entity; 4. Appraisals ofreal property acquired or to be acquired; and 5. Records which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, or other infrastructure located within the Commonwealth of Massachusetts, the disclosure of which is likely to jeopardize public safety. Finally, Roxbury Prep will not produce any records protected by the attorney-client privilege or attorney work product doctrine." The School claims that because Ms. Wallace's request" ... seeks records related to a wide range of topics and created over a five year period of time, from 2014 through 2019, ... [it] will need to hire a contractor in order to comply with [her] records request." The School explains that it is unable to provide Ms. Wallace with an accurate cost estimate "[u]ntil [it] receive[s] a response from [her] regarding the scope of [her] Request Nos. 3, 4, 5, and 7 ...." The School further states that it would retain" ... an attorney to review the potentially responsive records and to assess whether such records are subject to a claim of privilege or otherwise exempt from disclosure under Massachusetts law ...." The School's February 6th supplemental response In its February 6, 2019 supplemental response, the School contends that it has not denied Ms. Wallace access to responsive records and that it intends to provide Ms. Wallace with responsive records consistent with its obligations under the Public Records Law. The School explains that its initial response requested clarification of the scope of Ms. Wallace's request as permitted under the law" ... to arrive at a mutual understanding of the scope of records Ms. Wallace seeks, in order to reduce the time and expense of the production for all involved parties." The School, objecting to some of the claims made in Ms. Wallace's appeal petition

Oliver Truog SPR19/0216 Page 4 February 13, 2019 reiterates that it has not provided a good faith estimate for the cost of complying with her requests because it "has not yet confirmed the proper scope of Ms. Wallace's requests ...." The School reiterates that to avoid inadvertently waiving the attorney-client privilege, it may be necessary to hire an attorney " ... to cull out such privileged material before turning them over to a third party ...." In the School's responses, it notes that it has not denied Ms. Wallace any access to records but is seeking clarification regarding portions of the requests to ascertain the scope of her request so as to provide a good faith cost estimate. The School claims that although "[i]t appears that the majority of [Ms. Wallace's] requests relate to the potential siting of Roxbury Prep High School at 361 Belgrade Avenue in Roslindale, MA[,] ... from 2014 through 2019, the Roxbury Prep Board of Trustees entered into several leases for space out of which Roxbury Prep operated, or operates, on a short-term basis. These leases and the communications surrounding them are separate and unrelated to the potential siting of Roxbury Prep High School at 361 Belgrade Avenue." As such, the School also states that "[r]equests 3, 4, 5, 7 ... do not make clear if [Ms. Wallace] is seeking any and all documents in the categories listed relating to any and all potential real estate transactions (including lease arrangements) involving Roxbury Prep High School during this broad time period, or simply those documents relating to a possible 361 Belgrade A venue location." Please be advised that it is valid for the custodian of records to 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 agency or municipality to produce records sought more efficiently and affordably." See G. L. c. 66, § lO(b)(vii). Given the expansiveness of her request, Ms. Wallace is encouraged to provide the School with the needed clarification regarding the portions of the requests referenced in the School's response. G. L. c. 66, § lO(a)(i) (the request must reasonably describe the public record sought). The School must use its knowledge of the records to facilitate the provision of any responsive records. 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), (b)(ii). I note that in its supplemental response, the School indicates that it would " ... like to take this opportunity to request permission for [it] to charge in excess of the maximum hourly rate of $25 per hour for the time required to comply with Ms. Wallace's request, only to the extent that it must engage an attorney to conduct a final review of any potentially responsive records ...." Once Ms. Wallace clarifies her request, the School, if necessary, may submit a petition to the Supervisor of records in compliance with G. L. c. 66, § 10( d)(iv), within ten business from its receipt of the clarification. Conclusion Upon clarification, the School must provide a response to Ms. Wallace in a manner consistent with this order, the Public Records Law, and its Regulations. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this

Oliver Truog SPR19/0216 Page 5 February 13, 2019 response to this office at pre@sec.state.ma.us. Ms. Wallace may appeal the substantive nature of the School's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Elisabeth Wallace