Laura H. Ortiz v. Lynn, City of - Public Schools (SPR 20220458)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 11, 2022 SPR22/0458 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. SPR22/0458 Page 2 March 11, 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); and SPR22/303 Determination of the Supervisor of Records (February 22, 2022). In my February 22nd determination, I directed the School to provide additional information which demonstrates that 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 the request. The School provided a further response on February 24, 2022. Unsatisfied with the School’s response, Ms. Ortiz petitioned this office and this appeal, SPR22/0458, was opened as a result. While this appeal was pending, the School provided supplemental responses on March 2, 2022 and March 10, 2022, requesting that this appeal be denied under 950 C.M.R. 32.08(2)(b).

Charles Gallo, J.D. SPR22/0458 Page 3 March 11, 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 14th response In its February 14, 2022 response, the School states: 12. Until receiving the above-referenced Determination, it was unclear to the Lynn Public Schools RAO that the Requestor’s email of Monday, November 22, 2021, 2:51 PM, was to be considered a modified request. 13. The November 22nd email was addressed not just to the Lynn Public Schools, but also to Attorney Arthur, and therefore it seemed more like one of the Requestor’s many follow up communications to the Public Records Division concerning her Appeals. 14. Moreover, the subject line of the November 22nd email referenced Appeal SPR21-2939, again making i[t] seem more like one of the Requestor’s many follow up communications to the Public Records Division concerning her Appeals. 15. Should the November 22nd email be treated as a modified request, please be advised that the fee estimate would be 99 hours at $25/hour = $2,475.00 16. $28.47 is the hourly rate attributed to the lowest paid Lynn Public Schools employee who has the necessary skill required to search for, compile, segregate, redact or reproduce the requested records. However, the Lynn Public Schools RAO has used the lower state rate of $25 per hour in assessing the fee, rather than petitioning for a higher rate.

Charles Gallo, J.D. SPR22/0458 Page 4 March 11, 2022 17. Four (4) hours would be without fee because the population of Lynn, Massachusetts, is 101,253. 18. Based on the November 22nd email, 5,940 email communications have resulted. 19. Each email will need to be reviewed and potentially redacted [under Exemptions (a) and (c), as well as the attorney-client privilege] . . . 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 the School initially received Ms. Ortiz’s modified request on November 22, 2021, and did not provide a response until December 29, 2021, I find the School has not met its burden to demonstrate that its December 29th response was in compliance with G. L. c. 66, § 10(b). Accordingly, the School may not charge a fee for public records under G. L. c. 66, § 10(e). This office encourages Ms. Ortiz and the School to continue communicating 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 the records sought more efficiently and affordably). 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