Laura H. Ortiz v. Lynn, City of - Public Schools (SPR 20212939)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 19, 2021 SPR21/2939 Charles Gallo, J.D. Compliance Officer Lynn Public Schools 100 Bennett Street Lynn, MA 01905 Dear Mr. Gallo: I have received the petition of Laura Ortiz appealing the response of the Lynn 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 18, 2021, Ms. Ortiz requested 11 categories of records regarding food services from 2018 to 2021. The School emailed Ms. Ortiz on October 27, 2021 and October 28, 2021, in an attempt to assist her with narrowing the scope of Items 3, 4, 5, and 6 of her request. On November 1, 2021, the School provided Ms. Ortiz with a response, which included certain responsive records. The School also provided a fee estimate to portions of the request. Objecting to the fees and unsatisfied with the School’s response, Ms. Ortiz petitioned this office and this appeal, SPR21/2939, was opened as a result. In an email correspondence dated November 15, 2021, Ms. Ortiz appears to limit her appeal to Items 3, 4, 5, 6, and 10 of her request. For Items 3, 4, 5, 6, and 10, Ms. Ortiz requested: [3] Copy of all communication between the City of Lynn and/or Lynn Public School District/other to/from Chartwells and/or Chartwells K12 regarding ANY issues with the food services they provided and/or that was raised by LPS staff, students and/or parents. This request is not limited to [21] key words . . . . Note: For School Years 2021-2022, 2020-2021[,] 2019-2020 and 2018-2019. . . . [4] Copy of all communication between the City of Lynn and/or Lynn Public School District/other to/from Chartwells and/or Chartwells K12 Partner Revolution Foods regarding ANY issues with the food services they provided and/or that was raised by LPS staff, students and/or parents. This request is not limited to [21] key words. . . . Note: For School Years 2021-2022, 2020-2021[,] 2019-2020 and 2018-2019. . . . [5] Copy of all communication between the Lynn Public School District/other to/from City of Lynn regarding ANY issues with the food services in Lynn Public 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

Charles Gallo, J.D. SPR21/2939 Page 2 November 19, 2021 Schools served to staff and students and/or that was raised by LPS staff, students and/or parents. This request is not limited to [21] key words. . . . Note: For School Years 2021-2022, 2020-2021[,] 2019-2020 and 2018-2019. . . . [6] Copy of all communication between the Lynn Public School District/other to/from the Food Services Department regarding ANY issues with the food services in Lynn Public Schools served to staff and students. This request is not limited to [21] key words. . . . Note: For School Years 2021-2022, 2020-2021[,] 2019-2020 and 2018-2019. . . . [10] Copy of all communication between the Lynn Public School District/other to/from Madres de Lynn regarding ANY issues with the food services in Lynn Public Schools served to staff and students and/or that was raised by LPS staff, students and/or parents through Madres de Lynn. This request is not limited to [21] key words. . . . Note: For School Years 2021-2022, 2020-2021[,] 2019-2020 and 2018-2019. . . . 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.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 Item 10 In its November 1st response, the School stated that it provided responsive records which “. . . included a PowerPoint presentation, provided without fee and in a timely manner by the RAO.” In her November 15th email correspondence, Ms. Ortiz states “. . . the Madres de Lynn was having their correspondence sent through the North Shore Labor Council (NSLC) and [a

Charles Gallo, J.D. SPR21/2939 Page 3 November 19, 2021 named individual] and others whom utilized either the: northshorelaborcouncil@gmail.com] so ALL of this correspondence is still missing and emails throughout referred to Madres de Lynn, when it was a ‘meal complaint’ issues . . .” In light of the above, it is unclear if the School possesses any additional records responsive to Item 10 of Ms. Ortiz’s request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). 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). Items 3, 4, 5, and 6 With respect to Items 3, 4, 5, and 6, the School provided a fee estimate on November 1, 2021. In its November 1st estimate, the School states that after a search “. . . more than 2 million emails have resulted. Approximately 1 minute per email will be needed in order to compile, segregate, redact or reproduce the requested records. The scope of this request will require significant additional work hours for existing staff, the hiring of additional staff, or both, in order to compile, segregate, redact or reproduce the requested records. In particular, each email will need to be carefully reviewed and potentially redacted due to student privacy laws, including FERPA, as well as any non‐public personnel information.” The School indicates that its staff “. . . has spent in excess of 4 hours compiling, segregating, redacting or reproducing the requested communications, thus far.” As such, the School estimates, “2 million emails at 1 minute each = 33,333.33 hours. At the hourly rate of

Charles Gallo, J.D. SPR21/2939 Page 4 November 19, 2021 $25, a good faith estimate is $833,333.33. . . .” Employee time The Regulations provide that a municipality with a population of 20,000 or fewer may assess a fee for the first two hours of work performed. See 950 C.M.R. 32.07(2)(m)(2). Population data shall be determined by the decennial U.S. Census and it is the burden of the municipal RAO to provide such information in its response. 950 C.M.R. 32.07(2)(m)(2)(i-ii). The School’s fee estimate does not make clear if this is the case. As such, the School must clarify this issue. Under the Public Records Law, 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. G. L. c. 66, § 10(d)(iii). However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). Although the School indicated that it assessed an hourly rate of $25.00, it is unclear whether the School used the hourly rate of the lowest paid employee capable of performing the tasks. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.07(2)(i). The School must clarify this matter. In its October 27, 2021 email, the School advised Ms. Ortiz of its initial search that resulted in 2 million emails. The School suggested ways in which Ms. Ortiz could narrow her request. After Ms. Ortiz narrowed her request, the School’s search resulted in approximately 102,000 email records. On October 28, 2021, the School notified Ms. Ortiz and further suggested ways to modify the scope of the request. Subsequently, Ms. Ortiz indicated that her initial records request, resulting in approximately 2 million email records stands. In light of the School’s response, I encourage Ms. Ortiz and the School to communicate in order to facilitate producing records efficiently and affordably. Ms. Ortiz may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The School must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Fee waivers In her appeal petition, Ms. Ortiz states that she “. . . would therefore like the SEC to compel Lynn Public School to . . . waive any fees given this highest level of public interest we have ever seen in decades . . .” G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records:

Charles Gallo, J.D. SPR21/2939 Page 5 November 19, 2021 the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. In light of this provision, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added). Conclusion Accordingly, the School is ordered to provide Ms. Ortiz with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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: Laura Ortiz