Dylan Lambert v. Leicester, Town of - Public Schools (SPR 20213325)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 4, 2022 SPR21/3325 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. Previous appeals This request was the subject of previous appeals. See SPR21/2780 Determination of the Supervisor of Records (November 8, 2021); SPR21/3213 Determination of the Supervisor of Records (December 17, 2021). The School provided a response on December 21, 2021. Unsatisfied with the response, Mr. Lambert petitioned this office and this appeal, SPR21/3325, 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 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 SPR21/3325 Page 2 January 4, 2022 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. 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 December 21st Response On December 21, 2021, the School provided a response regarding the fee estimate of $350 it provided to Mr. Lambert on December 6, 2021. The School further explained the basis to charge for the performance of “segregation and redaction of responsive records under exemption (c) of the Public Records Law.” The School stated that “[g]iven that the search for responsive records has yet to be undertaken, and it is not possible to accurately determine whether and the extent to which responsive records will need to be redacted (responsive emails may contain non-responsive information, such as the names of persons unrelated to your request that would be subject to redaction for privacy reasons), the School will, upon receipt of a check in the amount of $300, search for responsive documents. In the event redactions to responsive records are permitted per the Public Records Law, that task will be completed in accordance with the law, and you will be billed separately for that task.”

Superintendent Tenzca SPR21/3325 Page 3 January 4, 2022 Based on the School’s December 21st, it is unclear how the School’s segregation and redaction of the records is required by law. It remains unclear if the redactions of “responsive emails” that “may contain non-responsive information” qualify to charge a fee for segregation or redaction 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 must provide further 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.