Michael Narekiewicz v. Tewksbury, Town of - Public Schools (SPR 20231223)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 22, 2023 SPR23/1223 Superintendent Brenda Theriault-Regan Superintendent of Schools Tewksbury Public Schools 139 Pleasant Street Tewksbury, MA 01876 Dear Superintendent Regan: I have received the petition of Michael Narekiewicz appealing the response of the Tewksbury Public Schools (School/District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 27, 2023, Mr. Narekiewicz requested: [C]opies of any and all correspondence pertaining to the incident(s) on the Number 1 bus of the HeathBrook/Center Elementary School run that happened on April 12, 2023. The correspondence would be between but not limited to [five identified individuals], Tewksbury Transit, and or their parent company Student Transportation of America. On May 11, 2023 the School responded and provided Mr. Narekiewicz with a fee estimate. Unsatisfied with the School’s response, Mr. Narekiewicz petitioned this office and this appeal, SPR23/1223, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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 Brenda Theriault-Regan SPR23/1223 Page 2 June 22, 2023 establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. Fee estimate – 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). 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 May 11th Fee Estimate In its May 11, 2023 response, the School provided a fee estimate of $65.75. The School asserts: The District’s good faith segregation of likely responsive electronic records as outlined herein, which is required in order for the District to review/redact prior to production as required by law, has already taken District information technology staff over three (3) hours. Because the Town of Tewksbury has a population of over 20,000 residents, no fee is assessed for the first (2) hours of this time, resulting in a remaining one (1) hour of District information technology staff

Superintendent Brenda Theriault-Regan SPR23/1223 Page 3 June 22, 2023 time. The lowest paid person capable of performing this task earns greater than $25.00 per hour…. Qualified District staff must review the approximately ninety-eight (98) likely responsive electronic mail records flagged by District information technology staff’s good faith search (outlined with specificity above), in order to redact any confidential information as required by law, particularly such as but not limited to in order to maintain the confidentiality of personally identifying student information, which is required by law, as well as for security reasons, such as relating to safe transportation of students and bus security measures, prior to disclosure. As outlined above, it is likely that: (1) redaction under [Exemption (a)] will be required by law in accordance with 20 U.S.C. § 1232g; 34 C.F.R. 99; 603 CMR 23.00 relative to confidential student record information; and/or (2) redaction under [Exemption (c)] will be required relative to student privacy, and/or (3) redaction under [Exemption (n)] security exemption will be required relative to bus safety/security, and/or (4) certain email records will be exempt due to attorney-client privilege that has attached and not been waived…. The District very conservatively estimates that, on average, one (1) minute each per the ninety-eight (98) likely responsive electronic records will be required for qualified District staff to review and redact these records in accordance with applicable law, resulting in a calculation of ninety-eight (98) minutes divided by sixty (60) minutes per hour, requiring 1.63 hours. The lowest paid person capable of performing this task earns greater than $25.00 per hour…. Therefore, a total of one (1) hour of District technology staff time plus 1.63 hours of review/redaction time, (both required by applicable law as detailed herein), totaling 2.63 hours multiplied by the maximum hourly rate of $25.00 per hour, results in a total good faith fee estimate of $65.75 for the District’s production of responsive records resulting from the search as outlined herein. Although the School has estimated that the process of segregating the records will take three hours, the School must further clarify this. Under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). Thus, the School must clarify if the segregation is required by law. In addition, although the School may assess a fee for time spent redacting records pursuant to Exemption (a), it remains unclear whether the School may assess a fee for redactions made pursuant to Exemptions (c) and (f). As noted above, a fee may 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)(ii); 950 C.M.R. 32.06(4).

Superintendent Brenda Theriault-Regan SPR23/1223 Page 4 June 22, 2023 I encourage Mr. Narekiewicz and the School to communicate in order to facilitate producing records efficiently and affordably. Mr. Narekiewicz may wish to narrow the scope of the request or 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). 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 Mr. Narekiewicz 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, Manza Arthur Supervisor of Records cc: Michael Narekiewicz