Donna Sprague v. Newburyport, City of - Public Schools (SPR 20222308)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 26, 2022 SPR22/2308 Philip A. Littlehale Business Manager Newburyport Public Schools 70 Low Street Newburyport, MA 01950 Dear Mr. Littlehale: I have received the petition of Donna Sprague appealing the response of the Newburyport Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 22, 2022, Ms. Sprague requested: All district records between Newburyport Public Schools employees, including [a named individual], and consultant [a named individual] and Culture7 Coaching/ Consulting between the dates of January 1, 2021 through January 31, 2021; this includes but is not limited to any and all professional training held via Google Meet and/or via Zoom, handouts, transcripts, videos, agendas, minutes, slides, presentations and any other training materials used during this time frame. The School responded on September 16, 2022. Unsatisfied with the School’s response, Ms. Sprague petitioned this office and this appeal, SPR22/2308, was opened as a result. Fees - Municipalities 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. 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). 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

Philip A. Littlehale SPR22/2308 Page 2 October 26, 2022 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 how 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The School’s September 16th Response In its September 16, 2022 response, the School provided some responsive records and also noted that Exemptions (a), (c), and (f) may apply to withhold or redact other responsive records. The School stated: Your request potentially seeks a massively large number of documents (as described in more detail below, there are more than 4,000 potentially responsive records) and, in an effort to identify and provide records that you may be seeking at no cost to you … To the extent your request seeks records of communications regarding [a named individual’s] training, we anticipate that the location with the largest portion of responsive records will be the District email server. However, given the broad scope of your request, materials that are potentially responsive to your request may be located in any number of locations, including in hard or electronic copy, and in various folders, files, and/or devices. In response to similar requests in the past…the District conducted an initial search of its email server using the January 4-29, 2021 date range and the following search parameters, which it believes are best tailored to return potentially responsive results: [two identified search parameters]….This search returned approximately 4,030 emails across 548 accounts. Because your request identifies a larger time frame than that which encompasses the prior search, the number of responsive results would be at least this large. The District has not yet begun reviewing, compiling, segregating, redacting, or reproducing these emails, nor has it begun searching for potentially responsive records that may be in other locations because given the massive number of documents found in our initial search, the District determined that it will take a substantial amount of time to review all of these documents and any further time spent responding to this request will be subject to your payment of

Philip A. Littlehale SPR22/2308 Page 3 October 26, 2022 the fees described herein…. As noted above, we are sending this response in an effort to provide you with relevant documents without charging a fee for what would otherwise be an unwieldy and burdensome public records request ad response—the District simply does not have the time or resources to spend reviewing and reproducing these records without charging a fee (assuming an average of 5 minutes per email, it would take more than 300 hours). If there are additional documents you are seeking, we would invite you to narrow your request to reduce the amount of time that will be required to respond, such as by identifying specific records/ communications you are seeking or providing more specific or limited parameters as to time, scope, search terms, individuals, etc. Current Appeal In her appeal, Ms. Sprague asserts, “[p]lease note that I did not receive the attached response from the Record Access Officer to my public records request until Friday, September 16, 2022 … Accordingly, due to the School’s failure to comply with the requirements of M.G.L. Chapter 66, §10, I submit this appeal to the Supervisor of Records, pursuant to 950 CMR 32.08(1), seeking the immediate production of public records at no cost.” 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).” Where Ms. Sprague submitted a public records request on August 22, 2022 and the School provided a response on September 16, 2022, 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. Sprague’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. I encourage Ms. Sprague and the School to communicate in order to facilitate producing records efficiently and affordably. Ms. Sprague may wish to 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). Conclusion Accordingly, the School is ordered to provide Ms. Sprague with a response to her request 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 the response to this office at pre@sec.state.ma.us. Ms. Sprague may appeal the substantive nature of the School’s response within ninety (90) days. See

Philip A. Littlehale SPR22/2308 Page 4 October 26, 2022 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Donna Sprague