Michael Levesque v. Roxbury Prep Charter School (SPR 20190650)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 8, 2019 SPR19/0650 Oliver Truog Roxbury Prep Charter School 206 Magnolia Street Dorchester, MA 02121 Dear Mr. Truog: I have received the petition of Michael Levesque appealing the response of the Roxbury Prep Charter School (School/Roxbury Prep) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on February 4, 2019, Mr. Levesque requested the following categories of records: "1. Any agreement between Roxbury Prep and Upton and Partners, LLC. 2. Any agreement with Roxbury Prep Belgrade A venue, LLC. 3. Any agreement with Northwind Strategies 4. Any agreement with Uncommon Schools, or any subsidiary or entity controlled by Uncommon Schools regarding the siting of a high school at 361 Belgrade Avenue, Roslindale, MA. 5. Any emails or written correspondence between any representative, employee or agent of Roxbury Prep or Uncommon schools and any representative, agent or employee of Upton and Partners, LLC. 6. Any emails or written correspondence between any representative, employee or agent of Roxbury Prep or Uncommon schools and any representative, agent or employee of Roxbury Prep Belgrade A venue, LLC. 7. Any emails or written correspondence between any representative, employee or agent of Roxbury Prep or Uncommon schools and any representative, agent or employee of Northwind Strategies 8. Any emails or written correspondence between any representative, employee or agent of Roxbury Prep or Uncommon schools and any representative, agent or employee of Uncommon Schools regarding the siting of a high school at 361 Belgrade A venue, Roslindale, MA. 9. Any emails between (meaning to, from, cc, bee or forwarded by) any representative, employee or agent of Roxbury Prep or Uncommon schools and the email address mrachelcs@gmail.com 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

Oliver Truog SPR19/0650 Page2 April 8, 2019 10. Any emails between (meaning to, from, cc, bee or forwarded by) any representative, employee or agent of Roxbury Prep or Uncommon schools and the email address info@roxpreproslindale.org." Previous appeal The requested records were the subject of a previous appeal. See SPR19/438 Determination of the Supervisor of Records (March 6, 2019). In my March 6th determination, I ordered the School to provide Mr. Levesque with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the March 6th determination, the School provided a response on March 20, 2019, which included a fee estimate. Unsatisfied with the School's response, Mr. Levesque petitioned this office and this appeal, SPRl 9/0650, 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). 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 2rfh response In its March 20, 2019 response, the School indicated that it did not possess records responsive to items 1-6 of Mr. Levesque's request. The School further indicated that with respect to requests 7-10, it possesses the following categories of records: "[e]mails between Roxbury Prep and Northwind Strategies, 6,593 records ... ; [e]mails between Roxbury Prep and mrachelcs@gmail.com, 503 records ... ; [e]mails between Roxbury Prep and Uncommon schools, 34,508 records ... ; [and] [e]mails between Roxbury Prep and info@roxpreproslindale.org, 4,423 records." The School indicated that the records would be produced subject to redactions. The School claimed that Exemptions ( c ), ( d), (i), (n), as well as the attorney-client privilege, apply to withhold portions of the responsive records. As

Oliver Truog SPR19/0650 Page 3 April 8, 2019 such, the School provided a fee estimate of $13,856.75. Fee estimate -municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(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 School indicated that its fee estimate comprised of "Retrieval and review of 46,027 e-mails and attachments, based on an average review rate of 100 e-mails per hour (460.27 hours, excluding first four hours)= 456.27 hours x $25/hour = $11,406.75; Digital storage of approx. 40 GB of data for two months= $1,200; Preparation of attorney-client privilege log (50 hours) 50 hours x $25/hour = $1,250; Total: $13,856.75." Based on the School's March 20th response, in his appeal petition, Mr. Levesque narrowed his request and indicated that "[b] ased on [the School's] report I ask for the following production: A. 503 records between Roxbury Prep and mrachelcs@gmail.com -Please produce these to me electronically as soon as possible. B. 6,593 records between Roxbury Prep and Northwind Strategies -Please produce these to me electronically as soon as possible. C. 4,423 records between Roxbury Prep and info@roxpreproslindale.org - I will waive my request for these records for the time being. I reserve my right to request these, but in the interest of saving time and expense for redacting the personal information of 'minor students' I do not ask for these to be produced to me.

Oliver Truog SPR19/0650 Page 4 April 8, 2019 D. 34,508 records between Roxbury Prep and Uncommo·n Schools regarding the siting of a high school at 361 Belgrade - While I reserve the right to request any or all of these records, in the interest of saving expense for all involved I would be willing to take a list of the 5 -7 custodians whose emails make up the bulk of these 34,508 records. I insist that one custodian on this list provided to me be ... Chief Operating Officer ...." Subsequent to the opening of this appeal, I learned that on April 1, 2019, the School provided a supplemental response indicating that it intends on providing Mr. Levesque with "an updated estimate of fees necessary to comply with his [narrowed] requests." This office encourages the School and Mr. Levesque to continue to communicate to facilitate providing records more efficiently and affordably. G. L. c. 66, lO(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 agency to produce records sought more efficiently and affordably). Conclusion Accordingly, the School is ordered to provide Mr. Levesque with a 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. Mr. Levesque may appeal the substantive nature of the School's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Levesque