Matt Magnarelli v. Billerica, Town of - Public Schools (SPR 20230513)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 31, 2023 SPR23/0513 Timothy Piwowar Superintendent Billerica Public Schools 365 Boston Road Billerica, MA 01821 Dear Superintendent Piwowar: I have received the petition of Matt Magnarelli appealing the response of the Billerica Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 7, 2023, Mr. Magnarelli requested the following information: [1] All emails, notes, and communications regarding the public figure and speaker [specified individual]. This includes any contracts regarding payment to her or her speaking engagement. [2] ... all emails and notes from any public-school employee and the public person [specified individual] on or after 1/1/22. [3] Any emails sent or received after 1/31/23 to or from any Public Employee in your school district’s possession regarding the news reporter or news agency as [specified search terms]. This includes any reference to [specified individual] in any way including his news business [specified name] or his first and last name in any way. Prior appeal The requested records were the subject of a prior appeal. See SPR23/0304 Determination of the Supervisor of Public Records (March 2, 2023). The Department responded on March 16, 2023. Unsatisfied with the Department’s response, Mr. Magnarelli petitioned this office and this appeal, SPR23/0513, 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 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 Timothy Piwowar SPR23/0513 Page 2 March 31, 2023 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). 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The School’s responses In its February 13, 2023 response, the School provided a fee estimate of $1,288.75 as follows: Request #1 All emails, notes, and communications regarding the public figure and speaker [specified individual]. This includes any contracts regarding payment to her or her speaking engagement. This request results with 261 separate BPS users and >500 messages. Extraction Unique User Exports = 261 Total Hrs. = 21.75 Estimated time per export/min = 5 Time required/Hrs. = 21.75 Redaction Unique User Exports = 588 Total Hrs. = 29.4 Estimated time per export/min = 3 Time required/Hrs. = 29.4 Request #2 I am requesting all emails and notes from any public-school employee and the public person [specified individual] on or after 1/1/22.

Superintendent Timothy Piwowar SPR23/0513 Page 3 March 31, 2023 Extraction Unique User Exports = 2 Total Hrs.= 0.17 Estimated Time per export/min = 3 Time required/Hrs. = 0.17 Redaction Unique User Exports = 3 Total Hrs. = 0.15 Estimated Time per export/min = 3 Time required/Hrs. = 0.15 Request #3 Any emails sent or received after 1/31/23 to or from any Public Employee in your school district’s possession regarding the news reporter or news agency as [specified search terms]. This includes any reference to [specified individual] in any way including his news business [specified name] or his first and last name in any way. Extraction Unique User Exports = 10 Total Hrs. = 0.83 Estimated Time per export/min = 5 Time required/Hrs. = 0.83 Redaction Unique User Exports = 25 Total Hrs. = 1.25 Estimated Time per export/min = 3 Time required/Hrs. = 1.25 Estimated total time to completion 53. 55 Hours In its March 16, 2023 response, the School clarified the search and segregation time to be 5 minutes per user. The School explained that once records are found containing the requested keyword search, “[t]he email archive system . . . creates a separate PST file for each staff member files [that] then need to be loaded into an email client one PST file at a time, staff then selects all records and runs a script to convert all records from their native .eml format to a PDF file and PDF files they are then combined into one large PDF file containing all records requested.” The School advised that “[p]er the attached itemized document, the [School] estimates that it will take 22.75 hours to search for the records you have requested and an additional 30.8 hours to determine what portion(s) of these records are subject to segregation and redaction under applicable state laws.” The School confirmed that “[t]he lowest-paid district employees who have the necessary skills to redact the records requested are confidential secretaries in the [School’s] central office, whose annual salaries have effective hourly rates in excess of $25.00/hr.” The School further advised that “…the [School] shall not charge a fee for the first two hours of time spent responding to a public records request. Given that the anticipated time required to respond to your request exceeds this amount by 51.55 hours, the [School] will be charging a fee of $25.00/hr for this additional time.”

Superintendent Timothy Piwowar SPR23/0513 Page 4 March 31, 2023 The School further advised that redactions are necessary pursuant to student records exemption under G. L. c. 4, § 7(26)(a), G. L. c. 71, § 34D and 603 C.M.R. 23.00. The School further indicated that the records will be reviewed for personnel file and personal privacy exemption pursuant to Exemption (c). As Exemption (c) redactions are not required by law, it is unclear if the School is assessing a fee for such redactions. 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The School must clarify. Based on the School’s response, it is unclear how the School may charge for exporting and creating a separate file for the email search, under G. L. c. 66, § 10(d)(iii). The Public Records Access Regulations provides the following definition of search time: Search Time. The time needed to locate and identify, pull from the files, copy and re-shelve or refile a public record. However, it shall not include the time expended to create the original record. See 950 C.M.R. 32.02. The School explained that it would “. . . create a separate PST file for each staff member files [that] then need to be loaded into an email client one PST file at a time, staff then selects all records and runs a script to convert all records from their native .eml format to a PDF file and PDF files they are then combined into one large PDF file containing all records requested[.]” However, it is unclear how such processes would constitute chargeable “Search Time” under the regulations. Please be advised that the School cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). I encourage the parties to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the scope of the request as suggested by the School. 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) (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). For the reasons discussed above, I find the School must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the School is ordered to provide a response to Mr. Magnarelli, 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

Superintendent Timothy Piwowar SPR23/0513 Page 5 March 31, 2023 send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Magnarelli may appeal the substantive nature of the School’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Matt Magnarelli