Michael Levesque v. Roxbury Prep Charter School (SPR 20190855)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 10, 2019 SPR19/855 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 A venue, 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 Avenue, 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 SPR19/855 Page2 May 10, 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 appeals The requested records were the subject of previous appeals. See SPR19/438 Determination of the Supervisor of Records (March 6, 2019); SPR19/650 Determination of the Supervisor of Records (April 8, 2019). In my April gth determination I ordered the School to provide Mr. Levesque with a response in a manner consistent with the order, the Public Records Law and its Regulations. The School responded on April 16, 2019. Unsatisfied with the School's response, Mr. Levesque petitioned this office and this appeal, SPR19/855, 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, § lO(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. Current appeal The School's April 16th response provides a list of custodians, and identified the number of potentially responsive emails and documents sent to/by each custodian. The School provided an estimate of $5,279.25 for the production of records. In his April 25th appeal petition, Mr. Levesque raises various issues related to the fee and the School's exemption claims. In particular, he indicates that the School did not submit a petition for permission to charge for the time to segregate and/or redact. He also asserts that the fee is unreasonable and objects to portions the School's exemptions claims. Subsequent to the filing of this appeal, the School provided another response on April 30, 2019.

Oliver Truog SPR19/855 Page 3 May 10, 2019 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, § IO(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, § 10(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, § IO(d)(iv). See G. L. c. 66, § IO(d)(iii); 950 C.M.R. 32.06(4). Petitions to assess fees and G. L. c. 66 § I O(e) As noted above, 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, § 10(d )(iv). See G. L. c. 66, § 10(d )(iii); 950 C.M.R. 32.06(4). Please be advised that an RAO must submit a petition under G. L. c. 66, § 10(d )(iv) within 10 business days ofreceipt of the request. See 950 C.M.R. 32.06(4)(g). Whereas it appears the School did not submit a petition within 10 business days of receipt of the request, the School must explain whether any potential segregation and/or redaction is required by law. In addition, G. L. c. 66 § IO(e) provides that "[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b)." I find the School must clarify whether it complied with G. L. c. 66 § lO(e); specifically, it must demonstrate whether it provided a response to Mr. Levesque under G. L. c. 66 § lO(b) within 10 business days of receipt of his initial request or modified request. See G. L. c. 66 § 1 O(b )(i)-(ix) ( outlining the requirements of a records custodian's written response to a requestor). Reasonableness off ee estimate The School's April 16th fee estimate is based on the following: "[r]etrieval and review of

Oliver Truog SPR19/855 Page 4 May 10, 2019 11,717 e-mails and attachments, based on an average review rate of 100 e-mails per hour ( 117 .1 7 hours, excluding first four hours);" $1,200 for "[d ]igital storage of approx. 40 GB of data for two months;" and "[p]reparation of attorney-client privilege log (50 hours)." The School assesses an hourly rate of $25 per hour. I find the School must explain why it requires this amount of time to produce the records. Specifically, it must describe how much time will be needed to search for the records, how much time will be needed to segregate and/or redact, and how much time will be spent reviewing each email. Further, it is unclear how the School can assess a fee for "[d ]igital storage of approx. 40 GB of data for two months" under G. L. c. 66, § 10( d)(iii). Particularly, it is uncertain how this constitutes time to search for, compile, segregate, redact, or reproduce records. The School must clarify this matter. Modification ofr equest In its April 30th response the School notes" ... Roxbury Prep and Mr. Levesque are still in the process of confirming the scope of Mr. Levesque's requests, as reflected in Mr. Levesque's April 25 appeal. Roxbury Prep will continue to engage with Mr. Levesque in good faith in order to confirm the scope of his requests. If Mr. Levesque confirms that he is unwilling to pay the fees associated with Roxbury Prep's production of the requested records, it will submit a formal petition to the Supervisor of Records. However, Roxbury Prep remains optimistic that the parties will be able to reach a mutual agreement regarding the scope of Mr. Levesque's requests." This office encourages the School and Mr. Levesque to continue to communicate to facilitate providing records 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 municipality 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 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Levesque