Robert Watson, Sr. v. Leicester, Town of - Public Schools (SPR 20220093)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 28, 2022 SPR22/0093 Dr. Marilyn Tenzca Superintendent Leicester Public Schools 3 Washburn Square Leicester, MA 01524 Dear Superintendent Tenzca: I have received the petition of Robert Watson, Sr. 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 December 31, 2021, Mr. Watson requested “all text messages associated with the phone provided by the town of Leicester and paid by the taxpayers from June 1-December 31.” The School provided a response on January 13, 2022. Unsatisfied with the response, Mr. Watson petitioned this office and this appeal, SPR22/0093, 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 SPR21/0093 Page 2 January 28, 2022 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 January 13th Response On January 13, 2022, the School provided Mr. Watson with a response and fee estimate of $87.50. The School explained the basis of the fee estimate: Search time for the Superintendent to search for and compile text messages from her cell phone related to school business for the period of June 1, 2021 and December 31, 2021: two hour(s) at $25.00 per hour, for a total of $50.00. Segregation and redaction time by the lowest-paid Town employee capable of performing this task (i.e., legal counsel): one hour and 30 minutes at $25.00 per hour, for a total of $37.50. The School further explained that the “[s]egregation and redaction time will be required for this request because responsive documents are text messages from the Superintendent which may contain attorney-client privileged information, as she may from time to time communicate via text with legal counsel or provide updates to school officials regarding legal advice obtained. As a result, legal counsel will need to review the document that are responsive to this request to confirm that they do not contain information exempt from production under the Public Records Law (as explained above), and to the extent they do, to redact any information that is required or otherwise eligible to be removed before production to you.”

Superintendent Tenzca SPR21/0093 Page 3 January 28, 2022 Additionally, the School provided a supplemental response on January 21, 2021 in support the January 13th fee estimate. The School stated the “Superintendent has already begun the process of identifying responsive text messages, and the two-hour estimate is fair and accurate based on the amount of time she has already spent searching for responsive text messages. Moreover, the cell phone is the Superintendent's personal cell phone, so not every text message is responsive. Finally, the school district is permitted to charge a taxpayer for the cost of complying with their public records request.” Based on the School’s fee estimate and responses, it is unclear why the School requires the amount of time listed above to produce the requested records. 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 this. This office continues to encourage Mr. Watson 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. Watson 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: Robert Watson, Sr. Kimberly Rozaq, Esq.