Ilya Feoktistov v. Newton, City of - Public Schools (SPR 20190724)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 8, 2019 SPR19/724 Jill M. Murray, Esq. Assistant City Solicitor City of Newton/Newton Public Schools 1000 Commonwealth Ave. Newton Centre, MA 02459 Dear Attorney Murray: I have received your petition on behalf of the Newton Public Schools (School/NPS) seeking an extension of time to furnish copies ofrequested records. G. L. c. 66, § IO(c); see also 950 C.M.R. 32.06(4). As required by law, the School furnished a copy of this petition to the requestor. G. L. c. 66, § lO(c). On March 7, 2019 the School received a request from Ilya Feoktistov seeking" ... all email communications to and from NPS teachers Michael Zilles, Sue Cohen, and Lynn Penczar, dated starting March 5, 2018 and ending with the date you finish compiling the recordsresponsive to this request." The School provided a fee estimate on March 11, 2019. Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v ) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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

Jill M. Murray, Esq. SPR19/724 Page 2 April 8, 2019 G. L. c. 66, § lO(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requester within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current petition In its March 26, 2019 petition the School indicates it" ... has determined that these three employees have sent or received more than 15,000 emails during the requested time period." You also refer to a March 8th response to Mr. Feoktistov in which the School explains "[d ]ue to the volume of the emails requested, the cost estimate for these emails will likely total several thousand dollars and require an extended period of time to redact appropriately. If you would like to suggest limited search terms or recipient lists, I expect this would decrease the cost significantly." The School's March 11th fee estimate is based on 245 hours for "Search, Compilation, Redaction and Review for confidentiality of electronic mail searches." The School explains that " ... many of these emails may be exempt pursuant to student records laws, union business, and/or privacy exemptions." This response also sought agreement from Mr. Feoktistov to an extension of 20 days from the date of receipt of payment to provide the records. The School notes that Mr. Feoktistov did not agree to an extension of time and, therefore, it submitted a petition to this office. In the School's petition you indicate that "NPS seeks maximum extension of 30 business days for this request. NPS does not have the resources to conduct the search, review, redaction and production prior to receipt of payment, and further, it will take several days to perform if payment is even received." You also indicate that the School " ... has sought to collaborate with Mr. Feoktistov to reasonably modify the scope of his request and sought his agreement for an extension." In a March 2]1h email Mr. Feoktistov indicates, in part, "[y]ou can cool your horses on this entire request, at least until Mr. Romer is served with my MPRL complaint. I have exhausted the administrative remedies available to me from the Supervisor of Records, and will get these records in court."

Jill M. Murray, Esq. SPR19/724 Page 3 April 8, 2019 Conclusion In light of Mr. Feoktistov's March 2ih email in which he appears to seek the records in court, I find it is unnecessary to opine on the School's time petition at this time. The School may re-submit a time petition to this office in accordance with G. L. c. 66, § lO(c) in the event that Mr. Feoktistov informs the School he continues to seek these records or modifies his request. This office encourages the parties to communicate to facilitate providing records more efficiently and affordably. See 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). If there is an updated fee estimate, it must be in compliance with this determination, the Public Records Law, and its Access Regulations. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Ilya Feoktistov