Ilya Feoktistov v. Newton, City of - Public Schools (SPR 20191402)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 30, 2019 SPR19/1402 Toby N. Romer City of Newton-Public Schools Newton North High School 100 Walnut Street Newton, MA 02460 Dear Mr. Newton: I have received the petition of Ilya Feoktistov appealing the response of the Newton Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 13, 2019, Mr. Feoktistov requested" ... any and all communications to and from [t hree identified School teachers] dated starting with June 13, 2018 and ending with the date you finish compiling the records responsive to this request." The School responded on June 19, 2019, providing a fee estimate. Unsatisfied with the School's response, Mr. Feoktistov petitioned this office and this appeal, SPRl 9/1402, was opened as a result. Petitions to the Supervisor of Records Mr. Feoktistov is reminded that when appealing to the Supervisor of Records, the requestor "shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a. complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses ... " 950 C.M.R. 32.08(1)(g). Fee estimates - 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, §, IO(d). The fees must reflect the actual cost of complying with a paiiicular 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 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

Toby N. Romer SPR19/1402 Page 2 July 30, 2019 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). 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. The School's June Ji" response In its June 13, 2019 response, the School indicates that "[t]his search, in combination with [Mr. Feoktistov's] original search, yielded approximately 15,000 emails that require [the School] to review for confidentiality, redactions, and productions. Specifically, many of these emails may be exempt pursuant to student records layVs, the privacy exemption (c) of the Public Records Law, and/or union business protected from disclosure under l 50E as it operates through Exemption (a) of the Public Records Law, as held by the Supervisor of Public Records in determination 19/0581." The School indicates that its fee estimate is as follows: "[s]earch, [c]ompilation, [r]edaction and [r]eview for confidentiality of electronic mail searches; [e]stimate: 245 hours (247 hours minus non-chargeable hours) @$25.00/hr $6,125." The School states that it would waive the cost of any storage device and for copies. In his appeal petition, Mr. Feoktistov references the determination, SPRl 9/05 81, mentioned in the School's response. In SPR19/0581, I found the School had met its burden to withhold portions of the responsive records under G; L. c. l 50E, § 2, as it operates through Exemption (a) of the Public Records Law. Citing to the Chadwick decision, Mr. Feoktistov contends that "[t]here is 'no legislative intent to incorporate within G.L. c. 150E a union-member

Toby N. Romer SPR19/1402 Page 3 July 30, 2019 . union privilege extending beyond the labor dispute setting.'[Chadwick v. Duxbury Pub. Sch., 475 Mass. 645, 646-647 (2016)]." Mr. Feoktistov asserts that "[e]ven more injustice and substantial injury will arise if the SOR denies the current appeal, challenging the [School's] June 19, 2019 stated intention to withhold as 'exempt ... union business protected from disclosure under 150E as it operates through Exemption (a) of the Public Records Law, as held by the Supervisor of Public Records in determination 19/0581." Conclusion Upon review of the file, it appears Mr. Feoktistov received a fee estimate from the School. However, it does not appear from his appeal petition that he is appealing the fee estimate. Consequently, it is unclear what the basis of Mr. Feoktistov's appeal is. Mr. Feoktistov is reminded that all petitions for appeal "shall specifically describe the nature of the requestor's objections to the response or failure to timely respond." 950 C.M.R. 32.08(1)(f). Accordingly, Mr. Feoktistov must describe his specific objections to the School's response. Sincerely, ~ · Rebecca S. Mu~ Supervisor of Records cc: Ilya Feoktistov