Kevin Bliss v. Leominster, City of - Public Schools (SPR 20190637)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 8, 2019 SPR19/637 Ned Pratt Director of Student Services/Records Access Officer Town of Leominster Public Schools 24 Church Street Leominster, MA 01453 Dear Mr. Pratt: I have received the petition of Kevin Bliss appealing the response of the Town of Leominster - 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, via email on December 12, 2018, Mr. Bliss requested electronic copies of: 1. The school policies on advertising and distribution of flyers to the schools and student body for review [by] parents and guardians; 2. Name and address of the law firm representing the [School] and amount to date of paid budget funds to this firm for litigation cases since [Paula Deacon has taken over as Superintendent]; 3. The contracts allowing all school district PTO's to form partnerships and authorize a bidding process to distribute advertising to the student body to bring home to parents and guardians; 4. Emails between Kerry Conway, past PTO president; Marylyn Coltran, present PTO president; Ned Pratt; and Paula Deacon, Superintendent with focus on partnerships with community businesses and the bidding process; also any conversation [that includes] Kevin Bliss; and 5. All cost[ s] associated with the ransom and replacing the past district computer system with the new Google based system. Prior appeal By email on January Ii\ Jenny Mundie provided Mr. Bliss with a copy of the School's policy regarding flyers, in response to Mr. Bliss's Request Number 1. In its January 14th response, the School provided the name of the law firm only, in response to Mr. Bliss's Request Number 2. A fee estimate was provided for the cost of providing Mr. Bliss with the balance of 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

Ned Pratt SPR19/637 Page 2 April 8, 2019 the records responsive to Request Numbers 2, 4 and 5. At that time, the School did not address whether it possesses any records responsive to Request Number 3. As a result of the School's initial January 14th fee estimate, Mr. Bliss petitioned the Supervisor of Records (Supervisor). The requested records and January 14th fee estimate were the subject of a prior appeal. See SPRl 9/082 Determination of the Supervisor (January 29, 2019). In my January 29th determination, I advised the School to indicate: • whether it waived the first two (2) hours of employee time, whether it was required to do so, and whether it could break down the amount of time per task or each requested item; • whether it has possession of any records responsive to Mr. Bliss's Request Number 3; • whether the School has used the lowest-paid hourly rate of the employee capable of performing the task necessary to produce the records; • whether the School does not have the ability to produce the responsive records electronically, as requested; and • whether the School could suggest a way Mr. Bliss could modify the scope of his request to enable the records to be produced more efficiently and affordably. Finally, in my January determination, I ordered the School to revise its estimate to comply with my determination, or provide further explanation of how the fee assessed in its January 14th response is consistent with G. L. c. 66, § lO(d). Current appeal Subsequently, the School provided a February 13th response and revised estimate for records responsive to Mr. Bliss's Request Number 4 for emails. A review by this office of the February 13th response reveals that the School did not assess any fees for the information generated in response to Mr. Bliss's Requests Numbered 1, 2 and 5. No duty to create records The School's February response also indicates that it has no records responsive to Mr. Bliss's Request Number 3 for "contracts allowing all school district PTO's to form partnerships and authorize a bidding process to distribute advertising to the student body to bring home to parents and guardians." Under the Public Records Law, the School is not required to create any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian ofrecords at the time of the request. See G. L. c. 4, § 7(26); see also 32 Op. Att'y Gen. 157, 165 (May 18, 1977). In his petition to the Supervisor, Mr. Bliss takes issue with the School only providing him with information responsive to his Request Numbers 2 and 5, by providing the information as

Ned Pratt SPR19/637 Page 3 April 8, 2019 content within the body of the response letter, instead of providing records. A review of Mr. Bliss's Request Number 2 specifically states, "[n]ame and address of the law firm representing the [School] and amount to date of paid budget funds to this firm for litigation cases since [Paula Deacon has taken over as Superintendent]. In his Request Number 5, Mr. Bliss specifically requests, "[a]ll cost[s] associated with the ransom and replacing the past district computer system ... " In its February 13th response, the School provided Mr. Bliss with the names and addresses of the law firms that represent the School in litigation cases, and the amount of money paid to these law firms for litigation since Ms. Deacon was employed as Superintendent. The School also provided the cost for the ransom paid and the cost to replace the computer system. I find that the School responded to the requests as stated in Mr. Bliss's December 2018 request. Mr. Bliss is advised that if he is seeking actual records that may be responsive to his inquiries in Requests 1 and 5, such as legal bills or invoices, he may wish to specifically request those records. If Mr. Bliss does request these records and the School intends to assess any fees, it must provide Mr. Bliss with a written, good faith estimate. See G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Fee estimate for Request Number 4 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 has estimated 6 hours of time at $25.00 per hour to search and compile emails that are responsive to Mr. Bliss' request for a subtotal of $150.00. Where the School is obligated to provide two (2) hours of employee time toward the work, the School reduced the number of hours of search and compilation time to 4 hours at $25.00 for a total of$100.00. See 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. G. L. c. 66, § 10(d )(iii). The response explains that the School has assessed the $25.00 maximum hourly rate, as the School relies on an outside vendor for its Information Technology tasks, and this vendor's hourly rate is $250.00 per hour, beyond the maximum allowed. Therefore, the School assessed the $25.00 hourly rate allowed by the Public Records Law. Regarding the 6 hours of time needed to comply with the request for emails involving multiple individuals including Mr. Bliss, the School's response states, "[f]inally, this estimate is based on the need to review all the emails between and among Kerry Conway, Marylyn Coltran, Superintendent Paula Deacon and myself, and to segregate out those emails that focus on

Ned Pratt SPR19/637 Page 4 April 8, 2019 partnerships with community businesses and the bidding process; and any email communications to or from [Mr. Bliss]." As an offer to Mr. Bliss to modify or narrow his request, the School proposes "[i]f the intent of your request is to determine whether there are any emails between and among Ms. Conway, Ms. Coltran, Ms. Deacon and/or myself that relate to you, this may allow for a more narrow search, which may reduce the good faith estimate associated with this request." The School posits that the $100.00 estimate to search and compile the emails may be further reduced. While the School's response states that it reserves the right to assert exemptions or privileges with respect to any responsive records, the School did not provide any fees for segregation and redaction that may be allowed by law. Therefore, it is unclear whether the School intends to assess any segregation or redaction fees. 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); see also 950 C.M.R. 32.06(4). 1 In his March 26h email to a Public Records Division staff attorney, Mr. Bliss asserts that everything he requested is available on the server they use daily. "[T]here is nothing needed to be physically obtained in a physical folder. It is all digitized data and only takes minutes to retrieve. [T]he two hour free window established is more [than] needed to obtain these records." Mr. Bliss did not indicate a starting date that would be used to search the emails of the individuals listed in his request and concluding with the date of the request (December 12). Nor did the School's response indicate whether it will be searching for several months' worth, or several years' worth of emails to account for the number of hours in its estimate for search and compilation. Therefore, it is unclear what process will be used to search and compile the emails to account for the number of hours. The School estimated 6 hours of time, but is only charging Mr. Bliss for 4 hours of time. I find that the School must provide a response to clarify the number of hours to complete these tasks, and the process that will be used to search and compile the emails. Conclusion Accordingly, the School is ordered to provide Mr. Bliss with a supplemental response, in a manner consistent with this order, the Public Records Law and its Regulations within ten (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.

Ned Pratt SPR19/637 Page 5 April 8, 2019 Sincerely, ~~ Supervisor of Records cc: Kevin Bliss Marc L. Terry, Esq., Mirick, 0 'Connell, DeMallie & Lougee, LLP