Jeanne Teichert v. Andover, Town of - Public Schools (SPR 20190439)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 8, 2019 SPR19/0439 Nicole L. Kieser Records Access Officer Town of Andover - Public Schools 36R Bartlet Street Andover, MA 01810 Dear Ms. Kieser: I have received the petition of Jeanne Teichert appealing the response of the Andover 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 January 14, 2019, Ms. Teichert requested" ... all additional public records relating to any and all requests for Special Education Parent Advisory Council (SEP AC) waivers from [the School] from January 2014 to present." Ms. Teichert noted that these records should" ... include all communications of emails, letters or any other form of communication between and among [the School] representatives, including elected (such as School Committee members) or volunteer representatives, paid APS staff, parents, and Department of Elementary and Secondary Education (DESE) representatives relating to the SEP AC waivers or to any other SEPA C issues related in any way to waiver requests. Please include full documentation of all requests for the waivers in any form, all supporting documents, and all full responses from DESE." The School provided a response on January 15, 2019, acknowledging receipt of Ms. Teichert's request. After confirmation ofreceipt of the request, on January 17, 2019, Ms. Teichert clarified that her request" ... includes any record of past or ongoing meetings or conversations between the district, the school committee, and parents relating to SEPA C, including emails, as these would be related to the waiver and the district's requirements under the waiver to continue efforts to ensure a functioning SEP AC in the future ..." The School provided a response on January 24, 2019, which included certain responsive records. The School's January 2lh response In its January 24, 2019 response, the School provided certain responsive records. The School also indicated that in regards to the portion of Ms. Teichert's request seeking emails, it "must convert Ms. Teichert's request ... into specific query using exact keywords ... [such as] 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

Nicole L. Kieser SPR19/0439 Page 2 March 8, 2019 'SEPAC Waiver;' 'SEPAC' and 'Waiver;' 'SEPAC'; and 'SEPAC' and 'meet'." The School stated that these search terms resulted in 46,437 matches. Due to the cost associated with the compilation, review, and redaction of the records, the School provided Ms. Teichert with alternative options to modify her request and advised Ms. Teichert to contact the School, should she wish to narrow her request. The School indicated that a cost estimate would be provided after January 29, 2019. Following the School's January 24th response, Ms. Teichert revised her previous request and requested records from "only the calendar years of2018 & 2019 ... " on January 25, 2019. The School provided a response on January 29, 2019. The School's January 29th response On January 29, 2019, the School provided certain responsive records and also provided a fee estimate based on Ms. Teichert's modified request which resulted in 2715 matches. The School stated that "search, compilation, review, and redaction time= 227 total hours (2715 records at approximately 5 minutes per record) at $25.00 per hour= $5,675." After subtracting the first two hours, the School indicated that the total estimated cost is $5,625. The School indicated that " ... it intends to produce all records responsive to [Ms. Teichert' s] request, withholding only records and portions of records, if any, that do not qualify as public records per the exemptions enumerated by the Public Records Law. Or that are protected by other legally applicable privileges." The School stated that it would provide Ms. Teichert with specific reasons if portions of the records are eventually withheld. Following the School's January 29th response, Ms. Teichert further narrowed her January 25th request and requested " ... all emails from ... 2019 that come up when searching the word 'SEP AC' alone ... " on February 4, 2019. The School provided a response on February 5, 2019. The School's February 5th response Based on this modification, on February 5, 2019, the School provided another response indicating that its search resulted in 209 matches. The School indicated that because of the narrowed scope and the limited number of results, ... the estimate to review each document can be reduced to an average of 3 minutes." The School stated that" ... this is reasonable to ensure the privacy of those that believe their conversations regarding their children is being protected and to comply with the exemption provisions of the Public Records Law. .. " The School provided another fee estimate, "search, compilation, review, and redaction time = 10.5 total hours (records at approximately 3 minutes per record) at $25.00 per hour= $262.50." The total cost, the School stated, is $212.50 after subtracting the cost of the first two hours. The School mentioned that '"redaction time' is time spent making redactions required by law to preserve student, employee and attorney-client confidentiality." After the School's February 5th response and cost estimate, on February 6, 2019, Ms. Teichert narrowed her request and requested" ... all of the email electronically that are able to

Nicole L. Kieser SPR19/0439 Page 3 March 8, 2019 be reviewed in a two hour time frame." After several communications between Ms. Teichert and the School, the School provided a response on February 15, 2019. The School's February 15th response After several communications between Ms. Teichert and the School, on February 15, 2019, the School provided another set of responsive records, "email communications from January 1, 2019-January 25, 2019 and attachments which include [Ms. Teichert's] defined search term 'SEPA C."' The School asserted that in providing Ms. Teichert " ... with this information, full waiver documentation to/from the Department of Elementary and Secondary Education on January 24th, 2019 and email communications from Office of Student Services on January 29, 2019, [it] has fulfilled [Ms. Teichert's] public records request ... " Unsatisfied with the School's responses, Ms. Teichert petitioned this office and this appeal, SPR19/0439, was opened as a result. While this appeal was pending, the School provided supplemental responses on March 5, 2019 and March 6, 2019. 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, § IOA(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, § lO(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 March 5th and 6th supplemental responses In its March 5, 2019 response, the School stated that it provided records to Ms. Teichert " ... from January 1 to January 25, 2019 at no cost based on her request for financial reconsideration." The School stated "[f]or the remaining records, as to which [Ms. Teichert] modified the parameters frequently in the course of our communications, the [School] reduced the time estimated for review from five minutes per record to three minutes per record as a show of good faith."

Nicole L. Kieser SPR19/0439 Page4 March 8, 2019 In its March 6, 2019 response, the School explained that "[t]he redactions in this document are a result of the [School's] need to protect student privacy .... The senders of these emails are parents of students with special needs, and they have the right to communicate with [the School's] Office of Student Services with the confidence that their privacy will be protected." The School, responding to some of the claims made by Ms. Teichert asserted that it did not force Ms. Teichert to modify her request. However, it was making an effort to provide alternative options to reduce the cost of compiling, reviewing, and redacting the records due to the volume ofrecords it received after its initial search. The School stated that "[t]he estimate provided to Ms. Teichert was reduced from $5625.00 to $212.50 in [its] efforts to create a manageable response. Additionally, [the School] reduced the time from five minutes for review to three minutes in order to accommodate. [The School] respectfully submits that all of this was in compliance with the Public Records Law." Burden ofs pecificity in responding and claiming exemptions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Although the School claims that a review of the documents is necessary to ensure the privacy of parents and to preserve student and employee confidentiality, it is unclear which exemptions under the Public Records Law the School is claiming to redact such information or how the exemptions apply to withhold the redacted portions of the responsive records. The School must provide a detailed response to specifically explain how the exemptions apply to redact the requested records in compliance with the Public Records Law. Fee estimates-municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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

Nicole L. Kieser SPR19/0439 Page 5 March 8, 2019 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). G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Fees to search for, compile, segregate, redact or reproduce a record request Upon review of its estimates, it appears the School is including time spent segregating or redacting records in its fee estimates. Please note that under the updated Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). I am not aware that the School has submitted a petition under G. L. c. 66, § 10(d )(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records; therefore, the School may not currently seek permission to assess fees for this request through a petition under G. L. c. 66, § lO(d)(iv). See 950 CMR 32.06(4 )(g). However, the School may provide additional information regarding how the redactions are required by law. Further, although the School claims that it" ... reduced the time estimated for review from five minutes per record to three minutes per record as a show of good faith[,]" it remains uncertain why 3 minutes is required for each email record. Particularly, the School must clarify the contents of these email records and indicate if these email records have attachments. Conclusion Accordingly, the School is ordered to provide Ms. Teichert 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: Jeanne Teichert