Michael Levesque v. Roxbury Prep Charter School (SPR 20192075)

_ The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

October 24, 2019 SPR19/2075 John Verrilli Regional Senior Director Roxbury Prep Charter Schools 206 Magnolia St. Dorchester, MA 02121

Dear Mtr. 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, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on February 4, 2019, Mr. Levesque requested the following categories of records:

Any agreement between Roxbury Prep and Upton and Partners, LLC.

Any agreement with Roxbury Prep Belgrade Avenue, LLC.

Any agreement with Northwind Strategies

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 Avenue, Roslindale, MA.

9. Any emails between (meaning to, from, cc, bec or forwarded by) any representative,

employee or agent of Roxbury Prep or Uncommon schools and the email address

mrachelcs@gmail.com -

PeNE

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 SPR19/2075 Page 2 October 24, 2019

10. Any emails between (meaning to, from, cc, bcc 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); SPR19/1473 Determination of the Supervisor of Records (August 7, 2019). In my August 7 determination I closed the appeal in light of the School’s July 30, 2019 supplemental response.

I understand the School provided responses on September 5, 2019 and September 23, 2019. Mr, Levesque appealed and SPR19/2075 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, § 10A(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; § 10(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, § 10(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 my June 17" 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 Family Educational Rights and Privacy Act (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, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii).

John Verrilli SPR19/2075 Page 3 October 24, 2019

In his current appeal petition dated October 9, 2019, Mr. Levesque indicates “[iJn light of your determination, on August 21 [] I made an additional request to Roxbury Prep for the public records (identified as 503 emails by Roxbury Prep relating to the email address: mrachelcs@gmail.com).” Mr. Levesque references the School’s September 5" response and asserts “Roxbury Prep maintains that these emails must be reviewed at the statutory rate of $25.00 per hour for segregation and redaction of public records responsive to my request. I disagree and I urge the Supervisor to [] specifically request Roxbury [Prep] to explain under what theory [] these emails can be included in any exemption under the public records law.”

Mr, Levesque asserts that “Mrachelcs@gmail.com is the email address of a non- employee, independent third party that Roxbury Prep purports is an architect by occupation” and further indicates “[t]he Supervisor should place the burden on Roxbury [P]rep to demonstrate how any exception to the public records law applies to these 503 records regarding . mrachelcs@gmail.com.” He suggests that these emails should not contain information exempt under FERPA nor confidential legal communications. Mr. Levesque indicates “[t]he emails to/from mrachelcs@gmail.com are public records that are simply cannot withheld. Therefore the cost of segregating and redacting should not be borne by me.”

Subsequent to the opening of this appeal the School provided a supplemental response on October 15, 2019. Mr. Levesque was copied on this response. In this response you indicate, in part, “. . : the body of potentially responsive emails identified by Roxbury Prep’s IT vendor include a number of emails which hit on the term ‘mrachelcs@gmail.com,’ but which are emails to/from parties other than Rachel Young (the individual connected with the mrachelcs@gmail.com address), and instead merely include the term ‘mrachelcs@gmail.com’ within the body of the email. Almost all, if not all, of that sub-set of records are protected by the attorney-client privilege, as they include communications Roxbury Prep exchanged with its outside attorneys.”

You further note that “[a]ccordingly, in order to conduct a thorough search for all records responsive to Mr, Levesque’s request for emails between Roxbury Prep and the email address mracheles@gmail.com, and ensure that Roxbury Prep is not inadvertently producing any attorney-client privileged communications, Roxbury Prep will have to review, segregate, and withhold or redact communications which are covered by the attorney-client privilege.” —

. With respect to the applicability of FERPA to the records at issue in this appeal, the

School explains “. . . the potentially responsive records collected by Roxbury Prep’s IT vendor include email ‘strings,’ or ongoing conversations. In some cases, emails to and from the email address mrachelcs@gmail.com are part of larger email strings which include communications between other individuals, and which may include FERPA-protected information.” You note that “TiJn such situations, Roxbury Prep will need to review each conversation and redact out the portions of those conversations which are not responsive and/or which include FERPA-protected information.”

John Verrilli- SPR19/2075 Page 4 October 24, 2019 .

As noted above, in his appeal petition Mr. Levesque asks this office to “. . . request Roxbury [Prep] [] explain [the] theory that these emails can be included in any exemption under the public records law.” Whereas the School’s October 15" supplemental response addresses the issues raised in Mr. Levesque’s appeal regarding the need to review the emails at issue for information exempt from disclosure under FERPA and/or the attorney-client privilege, 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. Murr: folrvcco Muay —

Supervisor of Records cc: Michael Levesque