Dylan Lambert v. Leicester, Town of - Public Schools (SPR 20212780)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 8, 2021 SPR21/2780 Dr. Marilyn Tenzca Superintendent Leicester Public Schools 3 Washburn Square Leicester, MA 01524 Dear Superintendent Tenzca: I have received the petition of Dylan Lambert appealing the response of the Leicester Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 9, 2021 and October 17, 2021, Mr. Lambert requested emails, correspondence, and text messages regarding School Committee members. The School provided a response on October 22, 2021. Unsatisfied with the School’s response, Mr. Lambert petitioned this office and this appeal, SPR21/2780, 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. 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

Superintendent Tenzca SPR21/2780 Page 2 November 8, 2021 Fee Estimate – 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, § 10(d). The fees must reflect the actual cost of complying with a particular 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, § 10(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 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, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The School’s October 22nd Response On October 22, 2021, the School provided a fee estimate of $1,050.00 explaining, “[i]f the actual cost to comply with [Mr. Lambert’s] request exceeds the initial good faith estimate, the School District will provide [Mr. Lambert] with a revised estimate and will continue to comply with [Mr. Lambert’s] request after receiving additional payment. If the actual cost to comply with [Mr. Lambert’s] request is less than the initial good faith estimate, the School District will refund any excess payment.” In its October 22nd response, the Department explained the $1,050.00 fee estimate below: Request No. 1: Emails and correspondence between all School Committee • Search and compilation time by the lowest-paid Town employee capable of searching for and compiling responsive emails (i.e., the Director of IT) and/or correspondence (i.e., the Superintendent) for each member of the School Committee to "parties" on the subject matters listed in request no. 1: twelve (12) hours at $25 .00 per hour, for a total of $300.00. • Segregation and redaction time (for records or portions thereof that must be redacted or withheld by law) by the lowest-paid Town employee capable of performing this task (i.e., the Superintendent or legal counsel): six (6) hours at $25 .00 per hour, for a total of $150.00.

Superintendent Tenzca SPR21/2780 Page 3 November 8, 2021 • Total estimate for request number 1: $450.00. Request No. 3: Emails and correspondence received by SC members • Search and compilation time by the lowest-paid Town employee capable of searching for and compiling responsive emails (i.e., the Director of IT) and/or correspondence (i.e., the Superintendent) for each member of the School Committee from anyone "relaying their opinions about Lind": six (6) hours at $25.00 per hour, for a total of$150.00. • Segregation and redaction time (for records or portions thereof that must be redacted or withheld by law) by the lowest-paid Town employee capable of performing this task (i.e., the Superintendent or legal counsel): two (2) hams at $25.00 per hour, for a total of $50.00. • Total estimate for request number 3: $200.00. Request No. 4: Emails and Correspondence involving Chairman • Search and compilation time by the lowest-paid Town employee capable of searching for and compiling responsive emails (i.e., the Director of IT) and/or correspondence (i.e., the Superintendent) involving Tom Lauder generally, as well as communications he had with the parties you have identified (including every other member of the Leicester School Committee and every member of North Brookfield School Committee) on the subject matters listed in request no. 4: ten (10) hours at $25.00 per hour, for a total of $250.00. For this request, we assume you are asking for communications Mr. Lauder had with the current school committee members of North Brookfield. • Segregation and redaction time (for records or portions thereof that must be redacted or withheld by law) by the lowest-paid Town employee capable of performing this task (i.e., the Superintendent or legal counsel): five (5) hours at $25.00 per hour, for a total of $125.00. • Total estimate for request number 4: $375.00. Request No. 5: Text messages between [Dr. Tenzca] and any members of the school committee • One (1) hour at $25.00 per hour for the Superintendent to search for and compile any text messages between her and any member of the Leicester School Committee regarding the subjects listed in your October 9, 2021 requests. • Total estimate for request number 5: $25. Based on the School’s October 22nd response, it is unclear why the School requires the amount of times listed above to produce the requested records. The School must provide further

Superintendent Tenzca SPR21/2780 Page 4 November 8, 2021 information on the details regarding the tasks involved, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The School must clarify these matters, including the time that is needed to perform segregation and redaction as required by law. This office continues to encourage Mr. Lambert and the School to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(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). Conclusion Accordingly, the School is ordered to provide Mr. Lambert with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Dylan Lambert Kimberly Rozaq, Esq.