Peter Hahn v. Cambridge, City of - Office of the City Solicitor (SPR 20201345)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 25, 2020 SPR20/1345 Seah Levy Public Records Access Officer Law Department Cambridge City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Peter Hahn appealing the response of the City of Cambridge (City) to a request for records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 20, 2020, Peter Hahn requested 16 categories of records pertaining to King Open School, including several categories of records relating to the principal. On May 25, 2020, Mr. Hahn emailed the Department to clarify and supplement one category of his request. Previous determination This request was the subject of a previous determination. See SPR20/0891 Determination of the Supervisor of Records (June 11, 2020). In my June 11th determination, I found the City had established good cause for a time extension of 30 business days. Further, in light of their petition, I found the City had met its burden to explain how the response could not be prudently completed without redaction or segregation. The City was advised to clarify the amount of time necessary to perform each task and ordered to provide a response to Mr. Hahn as soon as practicable after receipt of the determination. Furthermore, both parties were encouraged to continue to communicate to facilitate providing records more efficiently and affordably. On June 24, 2020, the City provided a supplemental response to Mr. Hahn. Unsatisfied with the City’s response, Mr. Hahn petitioned this office, and SPR20/1345, was opened as a result. Current Appeal In its June 24th response, the City provides a further explanation for the basis of time by a breakdown of each request. The City also states “[h]aving eliminated the portions of this request 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 SPR20/1345 Page 2 August 25, 2020 which are now being treated as a Student Record Request, the new total for the time needed by the School Department is 232 hours, reduced from 275 hours, at a rate of $25/hour, for a total of $5,800. The time petitioned for previously for the Public Records Access Officer remains at 30 hours, for an additional $750. Per 950 CMR 32.07(m)(1) 2 hours of this time will be waived, resulting in a new total of $6,500, reduced from $7,575. This estimate assumes all responsive documents will be produced electronically. If it is determined that portions of this request are exempt pursuant to the public records law, they will be eliminated from the response, and the amount owed by the Requesters will likely be further reduced.” In his appeal, Mr. Hahn contends “Requests # 4, 5, 9, 10, 11, 12, 15, 16, and 17 fall under the “public interest” waiver exception of G.L. c. 66, § 10 (d)(v)…” Mr. Hahn explains “Requests # 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 all relate to the citizen oversight of how the administration of the Cambridge Public Schools in general and the King Open School in particular carry out the following Cambridge Schools’ Vision….” Request #4 This request is for “[d]ata for all students placed in the Reflection Room at the King Open School while Darrell Williams has been principal, including a total number and a breakdown by student (using pseudonyms, such as Student A), sex, grade level, school year, and eligibility for special education.” The City indicates it will take 16 hours for Request #4 and explains “[t]he data requested for this item is not stored or broken out in the format that has been requested. This search will require a review of the Educators Handbook entries for all students in the schools. Once a student’s name has been determined, along with the name of the staff member who sent them to the Reflection Room, this information will have to be cross referenced with other portions of the student’s records. Any responsive records that are located will be produced in their existing format. Substantial redactions may be needed. It is possible the City will be unable to produce these records without violating student record confidentiality. If this proves to be the case, the City will cease work on this item of the request, and the Requesters will only be charged for the time actually expended on this portion of the request until work ceased on it.” Mr. Hahn contends “[p]resumably this data is regularly kept and easy to collate and copy.” Based on the City’s response, it is unclear why the above steps are necessary to gather the data; specifically, why a review of the “Educators Handbook” to find a student name and staff member must first be determined so it can be “cross referenced with other portions of the student’s records.”

Seah Levy SPR20/1345 Page 3 August 25, 2020 Request #5 This request is for the “[n]umber, type, and length of suspensions at the King Open School during 2018-19 and 2019-20 school years, broken down by grade level, socioeconomic status, and special education eligibility, and related contemporaneous reports to the superintendent.” The City indicates it will take 20 hours for Request #5 and explains “[t]here are currently both paper and electronic records that will need to be located regarding this item. A physical search of file cabinets on school premises will need to take place to locate various reports. These reports are unlikely to contain information such as ‘socioeconomic status, and special education eligibility,’ so they may need to be cross referenced with materials that provide this information. It is possible some of this information does not exist, and there are concerns regarding identifiability of students despite redactions to any records that are produced…[a]s with item 4, it is possible that the City will be unable to produce these records as they exist due to student record confidentiality….” Mr. Hahn contends that Request #5 “…is essentially information that must already be reported to the Department of Elementary and Secondary Education (“DESE”)…with the addition of reports to the Superintendent that are required by law (603 CMR 53.00).” The City is advised that municipalities cannot charge a requestor for the time it takes to search for responsive records based on insufficient organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). It is unclear whether these records already exist in the manner referenced by Mr. Hahn above. Request #9 This request is for the “[n]umber of bullying reports filed on behalf of students at the King Open School since September 2017.” The City indicates it will take 6 hours for Request #9 and explains “[t]here are both electronic and paper records responsive to this item of the request. A physical search will need to be undertaken for many of these records, for a time period spanning 3 years. The reports themselves cannot be produced for reasons of student record confidentiality. The end result of this request will be a number.” It is unclear why it will take the City 6 hours to search for the records in Request #9. Further, the City is advised, under the Public Records Law it is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977).

Seah Levy SPR20/1345 Page 4 August 25, 2020 Requests # 10, 11, and 12 These requests relate to district or school policies. For Request #10, the City indicates it will take 3 hours and explains “[w]e anticipate that the policy itself will be located and pulled quickly. However, with regards to the section of the request that reads ‘and the date it was created,’ research will be required to locate the motions, the history of the vote, and the history of when the language was incorporated.” For Request #11, the City indicates it will take 2 hours and explains “[t]his item of the request will be referred to the School Committee office to conduct a search.” For Request #12, the City indicates it will take 3 hours and explains “[w]e anticipate that the policy itself will be located and pulled quickly, but that additional time will be required to research ‘the date it was created,’ as with item No. 10 of the request.” Based on the City’s response, it is unclear why it will take cumulatively 7 hours to respond to Request # 10, 11, and 12. Specifically, the City must clarify the tasks necessary for the basis of the estimated search times. Further, with respect to Request 10 and 12, the City is advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977). Request #15 This request is for the “[n]umber of IEPs across the Cambridge Public School District in the 2018-2019 and 2019-20 school years by school and grade.” The City indicates it will take 5 hours to response to Request #15 and states “[t]his item will be handled by the Office of Student Services.” Based on the City’s response, it is unclear why it will take 5 hours to respond to Request #15. Specifically, the City must clarify the tasks necessary in responding to this part of Mr. Hahn’s request. Requests # 16 and 17 Requests #16 and #17 are related to records regarding complaints, as well as settlement agreements. The City indicates it will take 40 hours for Request #16, and 40 hours for Request #17. The City explains “[b]oth request items Nos. 16 and 17 will require documents to be pulled from offsite storage. The time span of this request is 9 years…[t]hese two items of the request will require the assistance of Human Resources, the School’s Title 9 Officer, Principal Darrell Williams, the School Committee office, The Superintendent’s office, and Legal Counsel Maureen MacFarlane. It is unknown at this time what may or may not be located, but physical files will need to be reviewed to make this determination by Legal Counsel Maureen MacFarlane. These files will necessarily involve confidential personnel information, student record information, potentially attorney-client communications, and other privileged records.”

Seah Levy SPR20/1345 Page 5 August 25, 2020 The City is advised that municipalities cannot charge a requestor for the time it takes to search for responsive records based on insufficient organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Consequently, the City must explain further the tasks required to respond to these portions of the request. Conclusion Accordingly, the City is ordered to provide Mr. Hahn with a response in a manner consistent with this order, the Public Records Law, and its Regulations as soon as practicable. 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: Peter Hahn