Philip A. Dzialo v. Mohawk Trail School System (SPR 20191226)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 1, 2019 SPR19/1226 Karen Totman Executive Secretary to the Superintendent Mohawk Trail School District 24 Ashfield Road Shelburne Falls, MA 01370 Dear Ms. Totman: I have received the petition of Philip A. Dzialo appealing the response of the Mohawk Trail School District (District) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on May 10, 2019, Mr. Dzialo requested: 1. From the administration of the school and the other district officials (superintendent or at his discretion) 2. From any member of the school committee Regarding: the removal of artwork depicting the Mohawk Indian (Gym wall, entrance signage, change of mascot, aiiwork, name of the school, the name "warriors", or related issues written by the above persons. By law, e-mails cannot be deleted but MUST be archived 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. 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

Karen Totman SPR19/1226 Page 2 July 1, 2019 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. Appeal In letter dated May 14, 2019, the District responded to this request by providing a fee estimate. On June 12, 2019, the District provided another response to Mr. Dzialo indicating that "[t]he time estimates ... listed in the Response Letter to [Mr. Dzialo] dated May 14, 2019 have proven to be grossly underestimated." The District indicates its" ... Data Administrator has now spent 10 hours on [Mr. Dzialo's] request and [another employee has] put in 13.5 hours redacting emails." The District indicates it has" ... attached the documents [it has] completed to date. If [Mr. Dzialo] would like [the District] to continue on with [his] request, [the District] will send [him] an updated invoice." Subsequently, on June 14, 2019, Mr. Dzialo emailed the District requesting it send an updated detailed invoice and indicates he is appealing to this office. In Mr. Dzialo's petition for appeal dated June 17, 2019, he indicates that he "requested ( 1) the reason based on the PRL for each redaction a,b,d,c, etc. and an itemized bill for money [he] sent in." He asserts that he " ... was refused the reason based on legal exemptions with explanation and a detailed bill." In a letter dated June 17, 2019, the District provided Mr. Dzialo with an "updated invoice and citations from MA PRL allowing the redactions." In an email dated June 20, 2019, the District provided another response to Mr. Dzialo indicating that it is " ... sending the emails with all redactions removed with the exception of student names and student email address," which is has redacted pursuant to Exemption (c) of the Public Records Law. While this appeal was pending, in a June 24, 2019 email, Mr. Dzialo responds to the School's June 20th email indicating that he" ... paid in full, even the extra charge." He asse1is that "[m]any of the documents are repeated over abundantly and unresponsive. Since there are only a few redactions, the charges seem dispropmiionate and those need appeal and review." Mr. Dzialo requests this office "review repetitious records and charges for redactions and search." Whereas, Mr. Dzialo's most recent response indicates he is appealing only the fee, this determination will be limited accordingly. The attorney for the District provided another response on June 25, 2019, in which he indicates that "[i]t is my understanding that the requestor is now arguing that the documents that were provided were duplicative. However, in order to fully comply with his request it was necessary to provided numerous email chains that contained similar information. Removing some information would not have been appropriate and most likely would have been challenged by the requestor. In addition, as a public school system, it was necessary to review each and every document to ensure that confidential student and/or personnel information was not released. It turned out that this process took substantially more time than expected, but the

Karen Totman SPR19/1226 Page 3 July 1, 2019 District did not charge the requestor for any of the additional time." He additionally indicates that "[i]n regard to the last category of redacted material, the District is maintaining that the student names and the student email address of a student from a neighboring school system are not subject to release due to the privacy exemption. It is obvious from the materials supplied to the requestor that this is the information that was redacted, and there is no valid reason the requestor needs to obtain the student names and email address." Fee estimates 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 patiicular 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 (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). In its fee estimates, the Town indicates it is charging at hourly rates of $27.87 and $25.99. To the best of my knowledge, the District has not submitted a petition seeking approval to charge at a rate over $25 an hour. See id.; G. L. c. 66, § 10( d)(iv). Accordingly, the District is not permitted to charge at a rate over $25 an hour. 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 CMR 32.06(4). Such petition must be must be made within ten business days after receipt of the request for records. Id. To the best of my knowledge the District has not submitted a petition seeking approval to charge for segregation or redaction within the prescribed timeframe. See id.; G. L. c. 66, § lO(d)(iv). The District indicates that the remaining redactions were made pursuant to Exemption ( c) of the Public Records Law " ... as the information related to specifically identified students and would have resulted in an unwarranted invasion of personal privacy, or in many cases were due to the fact that the documents were not related to [Mr. Dzialo's] information request." The District is advised that although Exemption ( c) permits redaction under the Public Records Law, it does not require it. See G. L. c. 4, § 7(26)(c). Whereas, the District has not received approval through a petition to charge for redaction and has not established that the redactions are required by law, the District is not permitted to charge fees for time spent redacting the records pursuant to Exemption (c).

Karen Totman SPR19/1226 Page 4 July 1, 2019 Municipalities may charge to search for, compile, segregate, redact or reproduce a record. G. L. c. 66, § lO(d)(iii). Based on both the District's responses reflecting its fee estimate, dated May 14, 2019 and June 17, 2019, is unclear how man6h ours are being allocated to what task of responding to the request. Specifically, in its May 1411 fee estimate, the District indicates that "it would take approximately 6 hours to locate and copy the requested records and 8 hours to redact any information not pertinent to the request." The estimate additionally indicates that "the Data Administrator will need 5 hours to perform the task and the Executive Secretary will need 8 hours to perform the task." It is unclear what task each individual is performing. The District's June 1 ? 111 response, which included a breakdown of the paid fee, does not address these issues. Similarly, the updated invoice included in its June 1 ? 111 response does not specify what task the two individuals listed are performing. Order Accordingly, the District is ordered to provide Mr. Dzialo with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Philip Dzialo