George P. King, Jr. v. Nashoba Regional School District (SPR 20190604)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 5, 2019 SPR19/0604 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, § lOA; 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 appeals The requested records were the subject of previous appeals. See SPRl 8/2030 Determination of the Supervisor of Records (December 31, 2018) and SPRI 9/0231 Determination of the Supervisor of Records (February 15, 2019) (February 15th determination). In my February 15th determination, I found that based on its January 15th response and the · determination in SPRI 8/1987, the District had met its burden to charge $75 for the time (1 hour) it took its attorney to review the responsive records. I also directed the District to provide additional information regarding how some of the steps it took to compile responsive records were in compliance with G. L. c. 66, § 10( d)(iii). Accordingly, I ordered the District to provide Mr. King with a response to the request in a manner consistent with the order, the Public Records Law, and its Regulations. Following the February 15th determination, in a response dated March 12, 2019, the District provided additional information regarding its fee estimate. Unsatisfied with the District's response, Mr. King petitioned this office and this appeal, SPRI 9/0604, was opened as a result. 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 SPR19/0604 Page2 April 5, 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, § 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, § 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, § lO(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, § lO(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 March Jilt response In my February 15th determination, I had indicated that although the District had met its burden to charge for its attorney fees, it was" ... unclear how the District may charge a fee for

Patricia Marone SPR19/0604 Page 3 April 5, 2019 steps 2 and 3 under G. L. c. 66, § 10(d )(iii). Particularly, it is uncertain how these steps constitute time to search for, compile, segregate, redact, or reproduce records." See February 15th determination. In its March 12, 2019 response, the District references the four-step process it undertook to respond to Mr. King's request. The District indicates that the "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 search job(s). In order to get the most accurate results, 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 "[t]he purpose of step 2 is to search for and compile responsive emails within Google Vault and then complete the first part of the process to reproduce those records. While a person granted access to Google Vault can search for and read messages inside Google Vault relatively quickly, the process of exporting those files into MBOX files, which is necessary in order to reproduce the actual record, takes considerable more time." The District states that its fee estimate " ... associated with Step 2 reflects the time to search for and compile responsive records and to start the process to reproduce those records in accordance with G. L. c. 66, § IO(d)(iii)." The District further explains that "[t]he purpose of Step 3 is to complete the extraction of emails from Google Vault and then convert them into a format that a person can read. This step is necessary because a person who does not have access to Google Vault will not be able to read the extracted files. Therefore the District needed to use a program to transfer them into a format that would be readable to anyone, including those without access to Google Vault." The District asserts that both steps were" ... necessary in order to search for, compile and reproduce the records sought by Mr. King." The District reiterates its willingness to assist Mr. King to modify the scope of the remaining portion of his request to enable the District to produce responsive records at a lower cost. Despite the District's response, I find the District has not met its burden to explain how these steps constitute time to search for, compile, segregate, redact, or reproduce records. As such, I find the District cannot charge a fee for Steps 1, 2, and 3 under the Public Records Law. In his appeal petition, Mr. King states that "I would request the Supervisor clarify why even a charge of $75 is being allowed per the previous determination as it was never estimated for me (950 CMR 32.07(b))."

Patricia Marone SPR19/0604 Page 4 April 5, 2019 In SPR18/1987, I found the District had met its burden to explain how "given the nature of the responsive records, the request could not prudently be completed without redaction, segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § lO(d)(iv). In light of the factors in G. L. c. 66, § lO(d)(iv), I find the School District may assess a fee of $75.00 per hour for attorney review." See SPR18/1987 Determination of the Supervisor of Records (December 12, 2018). Accordingly, whereas the District claimed in its January 15th response that it took its attorney an hour to review the records to determine whether the privilege applied to the requested records and provided a privilege log as required under the Public Records Law, I found the District had met its burden to charge a fee of $75 for its attorney's fees. See February 15th determination. In his appeal petition, Mr. King states that, "[t]he District continues to claim that the documents in question are privileged. The District has declined to explain how these document[s] are privileged given the previous evidence I have offered, namely the full 9-page legal memo analyzing the issue in question, making legal recommendations, and releasing it to the public, I ask the Supervisor to rule on this matter." In its January 15th response, the District had indicated that its efforts to locate responsive records with the phrase "by inference," broadened the scope of Mr. King's request as it produced approximately 608 email records. As such, the District assessed a fee of $547.50, " ... to search for and segregate each of the emails that 'by inference', references the terms in categories 6 and 7 [of Mr. King's request]." The District had also indicated 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. ... " See February 15th determination. Based on the District's response, I encouraged the District and Mr. King to communicate to facilitate providing records efficiently and affordably. I also informed Mr. King that he may clarify what he means by "by inference" in his public records request. Based on Mr. King's petition, it is unclear to which portion of the District's response he is objecting. Specifically, it is unclear if Mr. King is objecting to the records to which a privilege log has already been provided or the records which the District is yet to produce. Mr. King must clarify this matter. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: George P. King, Jr.