Ilya Feoktistov v. Cambridge, City of - Office of the City Clerk (SPR 20192118)

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

Rebecca S, Murray Supervisor of Records

October 30, 2019 SPR19/2118

Seah Levy

Records Access Officer Office of the City Clerk City of Cambridge

795 Massachusetts Avenue Cambridge, MA 02139

Dear Ms. Levy:

I have received the petition of Ilya Feoktistov, Esq. appealing the response of the City of Cambridge (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on September 9, 2019, Mr. Feoktistov requested “[a]ny and all instructional and/or educational materials, including but not limited to handouts, websites, multimedia presentations, PowerPoint or other slide presentations, class notes, syllabi, lesson plans, textbook sections, classroom management software communications, and test/examination materials, used at Cambridge Public Schools in teaching on any topic related to the history of the Middle East, the Arab-Israeli conflict, and/or the history/religion of Islam in any and all high school history classes during the 2017-2018, and 2018-2019 school years.” The City responded on September 19, 2019, providing a cost estimate and indicating when it intends to produce responsive records. Mr. Feoktistov paid the cost estimate and sent a couple of inquiries to the City. The City responded to these inquiries on September 20, 2019. Claiming to not have received responsive records, and also, that the City’s responses violate G. L. c. 66, § 10(b)(vi), Mr. Feoktistov petitioned this office and this appeal, SPR19/2118, was opened as a result. While this appeal was pending, the City provided a supplemental response dated October 28, 2019.

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.MLR. 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).

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

Seah Levy SPR19/2118 Page 2 October 30, 2019

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.

The City’s September 19 response

In its September 19, 2019 response, the City provided a cost estimate of $900.00 and indicated that it would begin work on producing the responsive records upon receipt of payment. The City further indicated that “. . . due to the complexity of searching for requested documents the City hereby identifies a reasonable timeframe to respond to [Mr. Feoktistov’s] request of 25 business days from the date of [his] payment, pursuant to G.L. c. 66, §10(b)(vi).”

In email correspondences on September 19" and 20", Mr. Feoktistov opposed the additional time indicated by the City and stated that “... G.L. c. 66 §10(b)(vi) requires that you ‘produce the public records sought’ within a timeframe that ‘shall not exceed 25 business days following the initial receipt of the request for public records. . .” (Emphasis added.) Your letter misrepresents the subsection as allowing you to ‘respond to [my] request of 25 business days from the date of receipt of [my] payment.’” Mr. Feoktistov further stated that “. . . since you have invoked G.L. c. 66 §10(b), applicable when a records access officer is unable to produce the records within the 10 business day timeframe established in G.L. c. 66 §10(a), you were also required, pursuant to G.L. c. 66 §10(b)(v), to ‘provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought... .”

The City responded on September 20" and explained that Mr. Feoktistov’s request “. . . is an extensive request that will require many disparate steps to complete. All staff members whose lesson plans touch on these subjects will have to be identified, throughout the School System. Each of these staff members and other personnel will need to be contacted, and the request communicated to them. These professionals will need to find time within their schedules, or through overtime, to locate the materials, whether they be electronic or paper, and transmit them to a coordinating party.” The City further explained that “[i]t may be necessary to make digital copies of textbook sections, or other materials that are only currently available in hard copy. Searching any available communications software for responsive materials may require the assistance of IT support staff. All materials located will need to be reviewed carefully to ensure they do not include private student records.”

Seah Levy SPR19/2118 Page 3 October 30, 2019

The City’s October 28" supplemental response

In its October 19, 2019 supplemental response, the City contends that Mr. Feoktistov’s “... literal interpretation of G. L. c. 66, § 10(b)(vi) should not be adopted because it would lead to an absurd or unreasonable result, namely, placing an undue burden on municipalities to go through the process of producing potentially voluminous public records requests without ' payment.” The City explains that “[a]fter sending a cost estimate within 10 business days under G. L. c. 66, § 10(b)(viii), the City often does not hear back from a requestor in a timely manner or sometimes at all. As such, if the City is limited to a ‘reasonable timeframe’ of 25 business days from receipt of the public records request, under G. L. c. 66, § 10(b)(vi), the City would be required to (a) immediately reach out to requestors who have not responded to the fee estimate for confirmation and an extension; (b) immediately process unpaid requests, which are often voluminous; or (c) petition the Supervisor for a one-time extension, pursuant to G. L. c. 66, § 10(c)....” The City contends that “. . . it should not be required to expend and potentially waste taxpayers’ valuable time and resources by processing voluminous public records requests without advance payment.”

The City asserts that ““. . . [it] received a public records request from [Mr. Feoktistov] on’ September 9, 2019, emailed a fee estimate of $900 on September 19, 2019 (within 10 business days of the request), and only received payment from [Mr. Feoktistov] on October 8, 2019. In light of these facts and the voluminous nature of [Mr. Feoktistov’s] public records request to the Cambridge Public Schools, the City’s ‘interpretation seems the most reasonable and sensible in the circumstances.’ See Bridgewater State University Foundation, 463 Mass. at 160... .”

Whereas the City received Mr. Feoktistov’s payment on October 8, 2019, and the City has not yet provided responsive records, I find the City has not met its burden of demonstrating it has responded to this request in its entirety at this time.

Conclusion

Accordingly, the City is to provide Mr, Feoktistov with responsive records on a rolling basis, in a manner consistent with this determination, the Public Records Law and its Regulations. 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

ce: Ilya Feoktistov