Michael Narekiewicz v. Tewksbury, Town of - Public Schools (SPR 20231043)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 24, 2023 SPR23/1043 Brenda Theriault-Regan Superintendent of Schools Records Access Officer Tewksbury Public Schools 139 Pleasant Street Tewksbury, MA 01876 Dear Superintendent Regan: On May 16, 2023, this office received your petition on behalf of the Tewksbury Public Schools (School) seeking an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records, a waiver of statutory limits on fees that may be assessed in responding to the request, and relief from the obligation to produce responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the School furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). From April 13, 2023 through May 13, 2023, Michael Narekiewicz made thirty-two requests for public records via twenty-four separate emails, including, among other things copies of service contracts, employment contracts, job descriptions, professional licenses, and training records, along with recordings and related correspondence pertaining to an incident on a school bus. In its petition, the School notes that “remaining pending public records requests from the Requestor include an additional thirteen (13) public records requests received via an additional ten (10) separate emails received by several District staff members between May 1, 2023 and May 10, 2023.” In an email to this office on May 22, 2023, Mr. Narekiewicz raises multiple objections to the School’s petition. Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: 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

Brenda Theriault-Regan SPR23/1043 Page 2 May 24, 2023 (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. -- The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Request for Additional Time to Produce Responsive Records In its May 16th petition, the School requests an extension of 30 business days and provides the following information in support of its request: [T]he District’s RAO and other District administrators, inclusive of the District’s Business Manager, Assistant Business Manager, and Assistant Superintendent, have received thirty-two (32) requests for public records from the Requestor, all via twenty-four (24) separate emails, and all received between April 13, 2023 and May 13, 2023. ... To date, the District has responded timely and in good faith to nineteen (19) of the Requestor’s thirty-two (32) public records requests, via fourteen (14) District responses. ... [S]eventeen (17) of the District’s nineteen responses to the Requestor to date have produced responsive District records without any fee assessment and without any redaction or withholding. ... [D]ue to the heightened overburdening of very limited District staff due to the Requestor’s many, frequent, and contemporaneous requests, at this point in a

Brenda Theriault-Regan SPR23/1043 Page 3 May 24, 2023 manner having risen to the level of overburden, District administrators and clerical staff are being pulled away from their most important work of educating, supporting, safeguarding, and celebrating students and staff during this, the busiest time of the academic year. Based on the School’s petition, I find that in light of the need to search for, collect, segregate and examine the records, the capacity of the School to produce the request without the extension, and efforts undertaken by the School in fulfilling the current requests and previous requests, the School has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The School is granted an extension of 30 business days for the pending requests. In its petition, the School also requests that “any future public records requests submitted to the District by the Requestor from the time of this writing through July 15, 2023, be extended to thirty (30) District business days from the date of each request.” The School is advised that in petitioning for an extension of time for records requests not yet received, the School seeks relief outside the scope of statutory authority given to the Supervisor under the Public Records Law. See G. L. c. 66, § 10(d)(iii), (iv); 950 C.M.R. 32.06(4). Petition to Assess Fees – Municipalities The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id.

Brenda Theriault-Regan SPR23/1043 Page 4 May 24, 2023 Fee Estimates – 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 2 (two) 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). Petition to Assess Fees In its petition, the School requests to “assess search and segregation fees.” In correspondence included with its May 16th petition, the School indicates that records relating to the incident on a school bus will need to be redacted pursuant to Exemptions (c) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(c), (f). Specifically, the School states that “District officials are currently in the process of investigating the bus incident” and “the Tewksbury Police Department’s investigation of this matter is still open.” The School also indicates that the records include “protected personally identifying student information.” In light of the School’s petition, I find the School has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the School may assess a fee for the segregation and redaction of such exempt material. In its petition, the School also requests that it “be permitted to combine any separate requests received from the Requestor over the course of seven (7) consecutive days into a single request/response, for fee assessment purposes, as appropriate.” The School and Mr. Narekiewicz are advised that a requestor may not divide a request into multiple parts in order to circumvent the fees allowed by the Public Records Law. In its petition, the School also requests “that the District may assess search and segregation fees from the start, without the two (2) hour statutory grace period.” As explained

Brenda Theriault-Regan SPR23/1043 Page 5 May 24, 2023 above, municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce records unless the municipality has 20,000 people or less. Accordingly, in requesting to charge for the first two hours, the School requests relief outside the scope of statutory authority given to the Supervisor under the Public Records Law. See G. L. c. 66, § 10(d)(iii), (iv); 950 C.M.R. 32.06(4). Fee in Excess of $25.00 per Hour In its petition, the School requests “that any fees assessed by the District in good faith relative to the Requestor’s requests be allowed a $75.00 per hour cap, in lieu of the standard statutory cap of $25.00 per hour.” Based on the information provided in the School’s petition, I find the School has not met its burden to explain how the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Accordingly, permission to charge in excess of $25.00 per hour cannot be granted at this time. Request for Relief In its petition, the School requests to be “relieved from any obligation to respond to this Requestor’s many, frequent, and contemporaneous public records requests, inclusive of the requests pending at this writing as well as any future public records requests submitted to the District from the time of this writing through July 15, 2023.” In support of its request, the School argues, among other things, that “the Requestor, due to dissatisfaction with a particular school bus matter, which seems to have prompted his initial public records requests aimed at accessing public record information relating to that matter, is at this point submitting many contemporaneous and tangential public records requests to various District administrators over an exceedingly short timeframe ... at least partially, as a tool of harassment likely aimed at disrupting and overburdening District administrators.” The School also argues that “the Requestors’ requests are contemporaneous, in some cases frivolous, and are likely designed to harass, or at least intimidate and overburden, the Tewksbury Public Schools.” Based on the information provided in the School’s petition, I find that the School has not demonstrated that the requests are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c). Consequently, relief from the obligation to respond cannot be granted. Conclusion Accordingly, I find the School has established good cause for a time extension of 30 business days for the pending requests, as described above. Additionally, to the extent the responsive records contain the exempt information described above, the School may assess a fee for segregation and redaction. However, as described above, the School may assess a fee limited to $25.00 per hour. Additionally, the School is reminded that although requests may not be structured in order to avoid fees, municipalities may not assess a fee for the first two hours of

Brenda Theriault-Regan SPR23/1043 Page 6 May 24, 2023 employee time to search for, compile, segregate, redact or reproduce records unless the municipality has 20,000 people or less. This office encourages Mr. Narekiewicz and the School to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to 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). Any subsequent fee estimate from the School must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Narekiewicz has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Michael Narekiewicz