George P. King, Jr. v. Nashoba Regional School District (SPR 20190231)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 15, 2019 SPR19/0231 Patricia Marone Nashoba Regional School District 50 Mechanic Street Bolton, MA O1 7 40 Dear Ms. Marone: I have received the petition of George P. King, Jr. appealing the response of the Nashoba Regional School District (District) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on November 26, 2018, Mr. King requested 7 categories of records. This appeal pertains to categories 6 and 7, requesting "any written communication and related documents" to and from "any attorney or staff member at Murphy, Hesse, Toomey and Lehane to" certain named individuals "that makes any reference, seeks any advice, offers any opinion or in any other way dicusses[,] considers, mentions or references this issue regarding the 'loans and leases', expressly or by inference, as reported in the so called 'forensic audit', dated between June 1, 2016 and March 20, 2017." Previous appeal The requested records were the subject of a previous appeal. See SPRl 8/2030. Determination of the Supervisor of Records (December 31, 2018). In my December 31st determination, I found that the District must revise its fee estimate or provide further explanation of how its fee was assessed in a manner consistent with G. L. c. 66, § lO(d). Following the December 31st determination, in a response dated January 15, 2019, the District provides further information regarding its fee estimate. Unsatisfied with the District's response, Mr. King petitioned this office and this appeal, SPRl 9/0231, was opened as a result. 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). 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

Patricia Marone SPR19/0231 Page 2 February 15, 2019 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, § 1 O(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. Fee estimate - Municipalities 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, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d )(i). Municipalities may not assess a fee for the first (two) 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, § 10(d )(iii). 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. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition 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); 950 C.M.R. 32.06(4). The District's January 15111 response In its January 15, 2019 response, the District explains that it " ... instructed its IT professional staff to conduct a search of its electronic correspondence that included Brooke Clenchy, Patricia Marone, and Lorraine Romasco and any attorney or staff member at Murphy, Hesse, Toomey and Lehane that included the words 'loan,' 'lease, 'forensic' or 'audit' and was sent or received between June 1, 2016 and March 30, 2017." The District indicates that the "search took approximately four ( 4) hours to perform and resulted in three hundred and ninety eight (398) emails. That process involved the following steps: 1. The Superintendent Office scheduled a meeting between Brooke Clenchy and Su Qi, from the IT department, to discuss the search request. This process took about fifteen (15) minutes[;] 2. The IT department then logged in to Google Vault portal and created new searchjob(s). In order to get the most accurate results,

Patricia Marone SPR19/0231 Page 3 February 15, 2019 separate searches were performed for each criterion (e.g. name, keyword, etc.) .... Once the initial search was finished, the results were exported into MBOX files. This process took approximately one and a half (1 Yz ) hours. 3. In order to read the MBOX format, the IT department had to transfer the files to a different machine, which has Mozilla Thunderbird mail client setup .... Once emails were in Mozilla Thunderbird mail client, the IT Department exported all of the messages out into separate folders for emails and attachments. This took about two (2) hours. 4. The final step was to burn a CD with both emails and attachments. This process took about fifteen (15) minutes to a half hour." The District explains that the emails were" ... further searched (reviewed) by the School District to determine if they were responsive to categories Six or Seven ...." The District states that after this process," ... only several records (approximately thirteen (13) pages) were responsive. The process revealed that although some [398] emails were initially found that contained the terms used in the search described above, the vast majority of the emails did not contain, discuss, consider, mention or reference the 'loans and leases,' as reported in the 'forensic audit', dated between June 1, 2016 and March 30, 2017." The District explains that the responsive records were then" ... forwarded to counsel for segregation and possible redaction." The District explains that "[u]pon review, each of the records appears to be protected by the attorney-client privilege [because they] ... consisted of confidential communications between the [District] and their legal counsel (Murphy, Hesse, Toomey & Lehane, LLP) undertaken for the purpose of obtaining legal advice ...." The District asserts that the privilege has not been waived and that" ... [t]he segregation of the records and creation of the ... privilege log took approximately one (1) hour to complete." Based on the work performed, the District assessed a fee of "$175.00 ... search time - 4 hours at $25 per hour= $100.00; segregation time 1 hour at $75 per hour." Further, the District explains that its efforts to locate responsive records, " ... revealed that the phrase, 'or by inference' dramatically broadened the scope of [Mr. King's] request. ... Therefore, any search for and segregation of email that 'by inference' references the terms in categories Six and Seven, would take much more time as it would require reading [e ach of 608] email[s]" to determine responsiveness. The District claims that it would have to complete steps three and four referenced above, and it "estimates that it will take about two (2) hours to complete those additional steps. [A s such, its] good faith fee estimate to conduct that process is $72.50 (i.e. 2.5 hours * $25 per hour)." The District claims that the records would have to be segregated and redacted by counsel and estimates" ... on average, one (1) minute to search each email to see if it is responsive to the request - i.e. whether the email, by inference, relates to the topics in categories Six or Seven. Therefore, that search is estimated to take approximately ten (10) hours. The [District's] fee estimate to conduct the search for the [6 08] emails, is $250 (i.e. 10 hours* $25 per hour) ...." The District explains that "based on the segregation already conducted by counsel ... , [it] estimates that counsel will need to spend approximately three (3) hours to segregate the results and create a privilege log if necessary. The total estimated fee for that segregation is $225.00 (i.e. 3 hours * $75 per hour). Based on the foregoing, and in accordance with G.L. c. 66, § lO(b)(viii), the [District] provides the following good faith estimate of $547.50 to respond to categories Six and Seven."

Patricia Marone SPR19/023 l Page 4 February 15, 2019 The District states that it " ... continues to be willing to assist [Mr. King] to modify the scope of [his] request to enable the [District] to produce the records sought at a lesser cost. This might include shortening the time period set forth in [Mr. King's] request, or limiting the number of individuals or topics." The District advises Mr. King to contact it to discuss these options. Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client's search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk, 449 Mass. at 450 n.9; see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609,619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. In addition, pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records "shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney client privilege is being claimed." G. L. c. 66, § lOA(a). Based on its response and the determination in SPRl 8/1987, I find the District has met its burden to charge $75 for the time (1 hour) it took its attorney to review the responsive records. See SPR18/1987 Determination of the Supervisor of Records (December 12, 2018). However, it is unclear how the District may charge a fee for steps 2 and 3 under G. L. c. 66, § lO(d)(iii). Particularly, it is uncertain how these steps constitute time to search for, compile, segregate, redact, or reproduce records. The District must clarify this matter. Modification of request With respect to the District's efforts to locate responsive records with the phrase "by inference," the District claims this broadened the scope of [Mr. King's] request and produced approximately 608 email records. The District claims that these records have to go through steps 3 and 4 indicated above to determine responsiveness. As result, the District assessed a fee of $547.50, as explained above. The District further states that this would require it to search for and segregate each of the emails that "by inference", references the terms in categories 6 and 7. The District states that because the process would take much time, it " ... continues to be willing to assist [Mr. King] to modify the scope of [his] request to enable the [District] to produce the records sought at a lesser cost. ... " Whereas the District has expressed its willingness to cooperate with Mr. King, this office encourages the District and Mr. King to communicate to

Patricia Marone SPR19/0231 Page 5 February 15, 2019 facilitate providing records efficiently and affordably. 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). Mr. King may wish to clarify what he means by "by inference" in his public records request. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the District is ordered to provide Mr. King with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: George P. King, Jr.