Michael Levesque v. Roxbury Prep Charter School (SPR 20191473)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen,isor of Records August 7, 2019 SPR19/1473 John Verrilli Regional Senior Director Roxbury Prep Chaiier 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 Chaiier School (School/Roxbury Prep) to a request for public records. G. L. c. 66, § lOA; 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 Paiiners, LLC. 2. Any agreement with Roxbury Prep Belgrade A venue, LLC. 3. Any agreement with N01ihwind 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 Avenue, 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 Avenue, 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 A venue, 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 Ashbmion 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 SPR19/1473 Page 2 August 7, 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); SPR19/1099 Determination of the Supervisor of Records (June 17, 2019). In my i 11 June 1 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 June 29, 2019. Mr. Levesque appealed and SPR19/1473 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 pmiion 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 i 11 In my June 1 determination I found the School had 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, § 10(d )(iii).

John Verrilli SPR19/1473 Page 3 August 7, 2019 I fu1iher found 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 the Family Educational Rights and Privacy Act (FERP A) and/or the attorney-client privilege. I also indicated that the School must clarify how certain activities constitute time to "search for, compile, segregate, redact or reproduce the record or records" as allowed by G. L. c. 66, § 10( d)(iii). I encouraged 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). In its June 29th response the School provided additional information about its fee estimate. In his July 24, 2019 appeal petition Mr. Levesque indicates "I am writing this email to appeal the latest response from Roxbury Prep associated with my original request for public records as well as Roxbury Prep's latest response." Mr. Levesque further notes "[i]n an effort to accommodate Roxbury Prep and in the public's interest in disclosure of public records, I am willing to pare down my document request (I reserve the right to seek any public records from Roxbury Prep at a later time)." He explains he is now seeking only 2 identified categories of records. Subsequent to the filing of this appeal the School provided a supplemental response on July 30, 2019. In this response you provide an updated fee estimate in response to Mr. Levesque's July 24th narrowed request. You indicate, in part, that "[p]er Roxbury Prep's prior correspondence regarding this issue, it must conduct an analysis of each of the 1,363 documents potentially responsive to your requests to avoid the risk waiving its attorney-client privilege or the production of any privileged attorney work-product." The School cites other exemptions as well, including FERP A, and explains that" ... it will take an average of 1.5 minutes per e-mail for it to search for, review, segregate, redact, and compile the 1,363 records responsive to your requests." Whereas the School's July 30th supplemental response includes a revised fee estimate for the production of records responsive to Mt. Levesque's July 24th narrowed request, I will consider this appeal closed. Mr. Levesque may appeal the substantive nature of the School's response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Michael Levesque

John Verrilli SPR19/1473 Page 4 August 7, 2019