Kevin Wood v. Georgetown, Town of - Public Schools (SPR 20190227)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 19, 2019 SPR19/0227 Carol C. Jacobs Superintendent Georgetown Public Schools 8 Pine Plain Road Georgetown, MA 01833 Dear Ms. Jacobs: I have received the petition from Kevin Wood appealing the response from the Georgetown Public Schools (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on December 14, 2018, Mr. Wood requested the following records: 1. Emails and email attachments to or from the Georgetown School Committee ... with any Georgetown School Department employee between the dates of October 14, 2018 and December 17, 2018 whether or not such communications passed through the Georgetown School Department email system. 2. Any correspondence with or about Kieve Wavus [Camp Kieve] between the dates of January 2016 and December 17, 2018. 3. Any correspondence with or about Trad Leadership Group, LLC, Core Trainings, Dana Hult, Deb Hult between the dates of January 2016 and December 17, 2018. 4. School Committee policy for establishing qualifications and scope of work for outside entities not paid by the Georgetown School Department but providing services to the school department and/or students. The School responded on December 25, 2018, and I understand Mr. Wood and the School have had subsequent correspondence about this request. 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 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

Carol C. Jacobs SPR19/0227 Page 2 February 19, 2019 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Appeal In its December 25, 2018 response the School indicated they would be in further contact with Mr. Wood regarding his request. On January 2, 2019, the Town provided responsive records to Mr. Wood available for pick up and indicated "there are no policies on file that establish qualifications and scope of work for outside entities not paid by the Georgetown School Department but provide services to the students." In his appeal petition Mr. Wood includes email correspondence between the Department and him from January 15, 2019 through February 2, 2019. Mr. Wood's subject line of his appeal states "Georgetown School Committee failure to respond." Mr. Wood notes in his appeal "I have been attempting to obtain certain records from the Georgetown School Committee since December 14, 2018." Mr. Wood claims "[t]he records officer [also Superintendent of Schools] has: a) provided substantially incomplete records that an objective observer would immediately recognize as deficient - and the records officer, therefore, would have known at a glance; b) delayed responsive production by repeatedly claiming unclarity of the request while never asking any specific question as to what is not clear; c) repeatedly mis-stating the scope of the request;d) repeatedly suggesting meeting with the school department's outside counsel to discuss the issue before production;e) denying certain records due to their location and not content." Mr. Wood further notes "[t]he records officer has delayed production with the latest date now of February 6, 2019; is denying certain records without just cause, and now informs me she will assess a fee of $238.80." For example, Mr. Wood indicates that the School's January 2nd response was "substantial incomplete; contained contained hundreds and hundreds of pages of progressive draft un-transmitted emails. There were also hundreds of pages of mis-formatted emails not representative of the original records. The production lacked all other requested information like attachments and correspondence which were specifically requested." Further, Mr. Wood states "Jacob's production cover letter dated January 2, 2019, does not claim any documents are exempt." Mr. Wood also notes the School's "intent to assess a fee to produce the records."

Carol C. Jacobs SPR19/0227 Page 3 February 19, 2019 The School's February 1, 2019 response includes a fee totaling $238.80 "for the search and fulfillment of your request including designing and conducting the searches, reviewing documents and preparing them to send to you." The School assessed a fee using a rate of the lowest paid employee at $16.28/hr. The School estimated a total of 10 hours in assessing a fee for the work that has been done and are "forgoing additional charges for our time during this extension." The School also charged a fee for two flash drives for the production, totaling $76.00. The School, in it's February 1st correspondence, stated to Mr. Wood that as he "review the search criteria, if you have specific changes and/ or would like to provide greater clarification on any search topic, please let us know and we can amend the search and run it again. Of course as I have offered a couple of times we are happy to meet with you and/or speak to you by phone to discuss any further clarification you might want to provide to perhaps reduce the number of e mails and/or provide you with those that most closely respond to your request." Under the Public Records Law and Access Regulations (Regulations), a municipality must provide a written response to the requestor that may "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." G. L. c. 66, § IO(b)(vii). This office encourages the School and Mr. Wood to communicate further to enable the School to provide the requested public records. Existence ofa dditional responsive records The School is advised that 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 of records at the time of the request. See G. L. c. 66, § 1O (a) (ii). Further, it must confirm whether it possesses any additional responsive records, including email attachments, referenced in Mr. Wood's appeal. If the School possesses such records, it must provide them in a manner consistent with the Public Records Law. Mr. Wood may wish to clarify whether he objects to any of the School's exemption claims and/or fee estimate. See 950 C.M.R. 32.08(1)(f) (all petitions for appeal shall be in writing and shall specifically describe the nature of the requestor's objections to the response or failure to provide a timely response).

Carol C. Jacobs SPR19/0227 Page 4 February 19, 2019 Conclusion Accordingly, the School is ordered to provide Mr. Wood with a response 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 Wood