Laura H. Ortiz v. Lynn, City of - Public Schools (SPR 20220303)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 22, 2022 SPR22/0303 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. 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 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. . . . 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. SPR22/0303 Page 2 February 22, 2022 [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. . . . On November 22, 2021, Ms. Ortiz modified her request to the following: Modification of To/From/CC/BCC X). LunchProgram mailing list**, @compass-use.com, northshorelaborcouncil@gmail.com Y) . . . . @lynnschools.org, . . . @lynnschools.org, . . . @lynnschools.org . . . ** Please note: Lunch Program being accessed while working in the Food Services Department, on this organizational Microsoft Outlook/other system, two of these individuals are head food service staff regardless if dually employed with any wholesale vendors, the correspondents are identified as . . . so these correspondent public records exist and were utilized from 2018-2021 Modification of keywords: “meal complaint”, “complaint”; “expired”; “spoiled”; “rotten”; “inedible”; “madres” Keeping last modification of timeframe (to be searched in separate batches to initiate a rolling records reasonable response all RAO’s are capable of): this school year 1st 2021-2022 so April 1 2021- October 27 2021, then Oct 1 2020- April 1 2021, then April 1 2020-Oct 1 2020, then Oct 1 2019-April 1 2020, then April 1 2019-Oct 1 2019, then Oct 1 2018-April 1 2019, and then Jan 1 2018- Oct 1 2018 . . . Previous appeals The request was the subject of previous appeals. See SPR21/2939 Determination of the -- Supervisor of Records (November 19, 2021); SPR21/3067 Determination of the Supervisor of Records (December 6, 2021); SPR21/3316 Determination of the Supervisor of Records (December 29, 2021); SPR21/3380 Determination of the Supervisor of Records (January 13, 2022); SPR22/0080 Determination of the Supervisor of Records (January 18, 2022); SPR22/0159 Determination of the Supervisor of Records (February 4, 2022). In my February 4th determination, I directed the School to clarify whether its initial fee estimate still applies to Ms. Ortiz’s November 22nd modified request. The School provided a further response on February 7, 2022. Unsatisfied with the School’s response, Ms. Ortiz petitioned this office and this appeal, SPR22/0303, was opened as a result. While this appeal was pending, the School provided a supplemental response on February 11, 2022, requesting that this appeal be denied under 950 C.M.R. 32.08(2)(b).

Charles Gallo, J.D. SPR22/0303 Page 3 February 22, 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 February 7th response In its February 7, 2022 response, the School provided the following: 2. In subsequent response, the RAO clarifies that the initial fee estimate in this matter was 33,333.33 hours at $25/hour = $833,333.33. 3. In subsequent response, the RAO clarifies that the modified fee estimate is 33,335.95 hours at $25/hour = $833,398.75. This is because the modified request served to increase the scope of records by newly including the northshorelaborcouncil@gmail.com email address. Fee calculation is explained further below. . . . Parts # 3, 4, 5, and 6 were for communications. The Lynn Public Schools RAO advised the Requestor on November 1st that more than 2 million emails have resulted. Each email will need to be reviewed and potentially redacted [under Exemptions (a) and (c), as well as the attorney-client privilege] . . . The population of Lynn, Massachusetts, is 101,253. . . . As of the current point in time, Lynn Public Schools staff have already spent in excess of 4 hours compiling, segregating, redacting or reproducing records, in response to the request. . . .

Charles Gallo, J.D. SPR22/0303 Page 4 February 22, 2022 The School is advised the Public Records Law permits a municipality to charge a fee for the cost of complying with the records request, which “shall not exceed the actual cost of reproducing the record.” See G. L. c. 66, § 10(d); 950 C.M.R. 32.07(2)(a), (c) (a municipality may “assess a reasonable fee for the production of a public record,” which “shall not exceed the actual cost of reproducing the record.’). The Public Records Law does not provide for allocating time spent searching for records responsive to an unfulfilled previous request to the fee estimate for any subsequent new or revised request. See also id. ------ Accordingly, in order to be in compliance with the Public Records Law and its Regulations, the School’s fee estimate for the November 22nd request must reflect the actual cost of reproducing records responsive to the November 22nd modified request only. The School must demonstrate that its fee reflects the total cost of complying with this November 22nd modified request and exclude any previous request. For the reasons discussed above, I find the School must revise its fee estimate and provide Ms. Ortiz with the revised fee estimate in compliance with G. L. c. 66, § 10(d). Further, in her appeal petition, Ms. Ortiz states: [The School] clearly failed to comply with G. L. c. 66, § 10(e);(b) etc for [November 22nd’s Modification To/From/CC/BCC for Part X and Part Y records ....narrowed scope request we had made (see our appeal) and in addition No records at all were produced nor was any SEC Extension requested by Lynn Public Schools] 11/22/21 Compliance with SEC SPR21/2939 Determination, Our Narrowing of Scope #3, #4, #5, #6 and #10 emails] . . . (therefore there was never whatsoever like we maintained ANY Lynn Public Schools response to our modified scope that day from after that 2:50 PM email’s clearly new request (all the way until December 29th) . . . We believe this is deliberate misrepresentation to the SEC by Lynn Public Schools insistence that they in any way prior to December 29th had ever produced any good faith estimate regarding that November 22nd 2:50 PM request because how on earth at 11:24 AM could they have given any good faith estimate when we had yet to narrow that scope to . . . requesting only high level management and mailing lists and outside 3rd party *.com accounts until later that afternoon? . . . G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” In this case, where Ms. Ortiz submitted a modified request on November 22, 2021, and it appears the School did not provide a response or a fee estimate until December 29, 2021, I find it is unclear whether the School complied with G. L. c. 66, § 10(e). Specifically, the School must demonstrate whether it provided a response to Ms. Ortiz’s November 22nd modified request under G. L. c. 66, § 10(b) within 10 business days of receipt of

Charles Gallo, J.D. SPR22/0303 Page 5 February 22, 2022 the request. 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