Matt Magnarelli v. Billerica, Town of - Public Schools (SPR 20230758)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 2, 2023 SPR23/0758 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 appeals The requested records were the subject of prior appeals. See SPR23/0304 Determination of the Supervisor of Records (March 2, 2023) and SPR23/0513 Determination of the Supervisor of Records (March 31, 2023). The Department responded on March 16, 2023 and April 18, 2023. Unsatisfied with the School’s responses, Mr. Magnarelli petitioned this office and this appeal, SPR23/0758, 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 SPR23/0758 Page 2 May 2, 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 SPR23/0758 Page 3 May 2, 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.” The School also stated 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

Superintendent Timothy Piwowar SPR23/0758 Page 4 May 2, 2023 indicated that the records will be reviewed for personnel file and personal privacy exemption pursuant to Exemption (c). In its April 18th response, the School confirmed its fee estimate. The School also stated that it “... remains willing to work to accommodate [the] request should you choose to narrow the scope, consistent with previous communications on February 16, 2023 and March 16, 2023.” 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[.]” The School indicated that the cost of producing records could be reduced if Mr. Magnarelli provides the names of people he wants emails from. 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). Conclusion Accordingly, I will consider this administrative appeal closed. If issues remain after further communication, Mr. Magnarelli may file an appeal. Sincerely, Manza Arthur Supervisor of Records cc: Matt Magnarelli