Michael Levesque v. Roxbury Prep Charter School (SPR 20191099)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 17, 2019 SPR19/1099 John Verrilli Regional Senior Director Roxbury Prep Charter Schools 206 Magnolia St. Dorchester, MA 02121 Dear Mr. Verrilli: 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, § 1 OA; 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

John Verrilli SPR19/1099 Page 2 June 17, 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); SPR19/855 Determination of the Supervisor of Records (May 10, 2019). In my May 10th 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 May 23, 2019. Mr. Levesque appealed and SPR19/1099 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, § 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. Current appeal In an April 16th response the School provided 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 ofrecords. In his May 31st 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 of the School's exemptions claims. Subsequent to the filing of this appeal, the School provided another response on June 14, 2019.

John Verrilli SPR19/1099 Page 3 June 17, 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, § 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 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). Petitions to assess fees,· segregation and redaction required by law 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). In my May 10th determination I found that the School must explain whether any potential segregation and/or redaction is required by law. In its May 23rd response the School indicates "[d]ue to the nature of Mr. Levesque's requests, Roxbury Prep worked with its IT vendor to run search terms on data hosted on Roxbury Prep's computer servers and identified a set of records potentially responsive to Mr. Levesque's requests. The potentially-responsive set ofrecords numbers in the tens of thousands. In order to confirm whether each potentially responsive record is, in fact, within the scope of Mr. Levesque's requests, Roxbury Prep must conduct an individual review of each record in order to determine whether: (1) the record is responsive to Mr. Levesque's requests, (2) whether the record is exempt from disclosure under the MPRL, and (3) whether the record is otherwise exempt from disclosure as a matter of law, for example, in the case where the record contains attorney-client privileged advice or information that is legally protected from disclosure." The School also asserts, in part, that the "[t]he records responsive to Mr. Levesque's requests thus include a number of attorney-client privileged communications and attached documents protected by the work product doctrine. Therefore, in order to maintain the attorney client privilege and protect its work product from public disclosure, Roxbury Prep is legally

John Verrilli SPR19/1099 Page 4 June 17, 2019 entitled to segregate and redact certain records subject to Mr. Levesque's requests." The School also references the Family Educational Rights and Privacy Act (FERP A) and notes" ... a number of the categories of records in his requests include records that contain information directly related to individual students, including their names and contact information. Roxbury Prep is required by law to maintain the confidentiality of students' information under FERPA , and violation of its FERPA obligations may result in penalties from the U.S. Department of Education. Accordingly, Roxbury Prep will be required by law to review all records prior to their disclosure to Mr. Levesque, and segregate and/or redact any records reflecting a minor student's education record." In its June 14th supplemental response the School notes" ... it is seeking to recover the costs of segregating and redacting the records because the segregation and redactions of the records is required by law, i.e., as required to protected the attorney-client privilege and comply with FERP A." In light of the above responses, I find the School has met its burden to explain how the segregation or redaction of responsive records is required by law to the extent that they contain information exempt under FERPA and/or the attorney-client privilege. As such, the School may assess a fee for this time without submitting a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii). It does not appear that Mr. Levesque raises an issue related to G. L. c. 66 § lO(e) in his current appeal. Reasonableness off ee estimate With respect to the reasonableness of the fee, the School indicates, in part, that "[t]he vast majority, or approximately 90 hours, of the time that Roxbury Prep will spend in complying with Mr. Levesque's requests will involve Roxbury Prep's efforts to search its computer servers for responsive records. Mr. Levesque has requested several categories of communications related to specific subjects, for example the siting of a high school at 361 Belgrade Avenue. Roxbury Prep has worked with its IT vendor to utilize search terms to narrow the total number of communications potentially responsive to Mr. Levesque's requests. However, Roxbury Prep will have to read each communication in order to identify all of the records that actually are responsive to the subject matters cited by Mr. Levesque. Mr. Levesque's requests are akin to a demand that Roxbury Prep search through countless bankers' boxes of physical letters and other documents and produce only those related to specific topics" ( emphasis in original). With respect to the amount of time to segregate and/or redact responsive records, the School notes "[o ]nee Roxbury Prep has completed its search for responsive records, it anticipates spending approximately 27.17 hours to review the records to determine whether the responsive records are subject to a statutory exemption and/or claim of privilege and to segregate and/or redact the documents as appropriate. Roxbury Prep anticipates that it will spend an average of approximately 0.6 minutes reviewing each e-mail."

John Verrilli SPR19/1099 Page 5 June 17, 2019 In his appeal petition Mr. Levesque indicates, in part, that "[b] ased upon information presented by Mr. Truog in his March 20 email, many of the documents in the records that may be responsive to my requests were communications between Roxbury Prep and third parties and therefore are not confidential communications between Roxbury Prep and its legal counsel." I find that in order to help determine the reasonableness of the fee estimate, the School must provide additional information regarding the volume of responsive records whose review it can lawfully charge for, specifically those it claims are exempt under FERP A and/or the attorney client privilege. Further, the School includes an additional fee of $1,200 " ... for the digital storage of approximately 40 GB of data for two months." The School notes "[t]his fee would be assessed in connection with Roxbury Prep's use of an electronic software program called Relativity to host and assist in the identification and review ofrecords potentially responsive to Mr. Levesque's requests." However, it is unclear how this fee is for the time to "search for, compile, segregate, redact or reproduce the record or records" as allowed by G. L. c. 66, § 10(d )(iii). The School must clarify this matter. This office encourages the School and Mr. Levesque to continue to communicate to facilitate providing records efficiently and affordably. 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). 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