Laura H. Ortiz v. Lynn, City of - Public Schools (SPR 20232570)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 10, 2023 SPR23/2570 Charles N. Gallo Public Records Access Officer Lynn Public Schools 100 Bennet Street Lynn, MA 01905 Dear Attorney Gallo: I have received the petition of Laura Ortiz appealing the response of the Lynn Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 8, 2023, Ms. Ortiz requested various records regarding the McKinney- Vento student statistics. Prior Appeal This request was the subject of a prior appeal. See SPR23/2273 Determination of the Supervisor of Records (October 5, 2023). In my October 5th determination, I found that where the School had provided options for Ms. Ortiz to obtain the records without cost, Ms. Ortiz’s claim that “the fee was unnecessary” was unclear. On October 16, 2023, Ms. Ortiz modified her request and sought the following: [1.] McKinney Vento/other statistical records for Lynn Public Schools responsive to: [a.] as of 10/5/23 McKinney-Vento or Homeless student total count number [b.] as of 10/5/23 State or Federal placement into Lynn Public Schools student total count number [c.] as of last day of school for 2022/2023 school year 6/23/23, McKinney- Vento or Homeless student year end total count number [d.] as of last day of school for 2022/2023 school year 6/23/23, State or Federal placement into Lynn Public Schools student year end total count number 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

Charles N. Gallo, Esq. SPR23/2570 Page 2 November 10, 2023 [e.] as of last day of school for 2021/2022 school year 6/22/22, McKinney- Vento or Homeless student year end total count number [f.] as of last day of school for 2021/2022 school year 6/22/22, State or Federal placement into Lynn Public Schools student year end total count number [2.] Additional records related to McKinney or other students facing barriers to clean or adequate amounts of clothes or access to a washer and dryer at home… [3.] Any Plan or Directive or other for McKinney Vento or state or federal placement or other students in Lynn Public Schools that: [a.] Addresses the removal of any barriers that prevent students from fully engaging in all school and extracurricular activities [b.] Provides resources for families experiencing homelessness [c.] Information about the supports and protections provided to students experiencing homelessness On October 26, 2023, the School responded and provided Ms. Ortiz with a fee estimate. Unsatisfied with the School’s response, Ms. Ortiz petitioned this office and this appeal, SPR23/2570, 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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 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

Charles N. Gallo, Esq. SPR23/2570 Page 3 November 10, 2023 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 October 26th Response In its October 26, 2023 response, the School provided Ms. Ortiz with two methods to obtain the records without cost and stated: Upon review and compilation relative to [Ms. Ortiz’s request] dated October 16th, however, it turned out that all records that would have been responsive to [the] September 8th request also would be responsive to [the] October 16th email. Even when compressed, the records total over 122,000 KB. This far, far exceeds what I can attach and send through email due to the limitations of the Lynn Public Schools Outlook email system. OPTION A[:] [The School] invite[s] [Ms. Ortiz] to schedule a time to visit our office to inspect the files… As this option would take almost no further employee time, it is available without fee. OPTION B[:] Alternatively, if [Ms. Ortiz] wish[es] to provide a new, unopened flash drive of sufficient size and a pre-paid postage envelope, [the School] would be happy to load the files onto the flash drive and mail it back to [Ms. Ortiz]. As this option also would take almost no further employee time, it too is available without fee. The above appear to be the only options that would be possible without further employee time and therefore without fee. Additionally, the School provided fee estimates for two alternative methods for Ms. Ortiz to receive the records. The School provided a fee estimate of $153.75 and stated the following: If [Ms. Ortiz] wish[es] to receive the records via email, below is a fee estimate, for additional time needed to reproduce the records in the requested format of email. Files totaling over 122,000 KB will require the sending of approximately 123 emails. Based upon the experience of responding to requests via email, it is estimated that 3 minutes per email will be needed to reproduce the records via

Charles N. Gallo, Esq. SPR23/2570 Page 4 November 10, 2023 email, for a total of 369 minutes, which equals 6.15 hours. Despite the hourly rate attributed to the lowest paid employee who has the necessary skill being higher, I am using the lower state rate of $25 per hour in assessing the fee for this request, rather than petitioning for a higher rate. $153.75 is the resulting fee for email reproduction. The School provided an alternative fee estimate of $61.25 and stated: If [Ms. Ortiz] wish[es] to receive the records via DropBox, and [is] able to set up a DropBox to receive the files, I would be happy to reproduce via DropBox. Below is a fee estimate, for additional time needed to reproduce the records in the requested format of DropBox... There are 294 separate files. Based upon the experience of responding to requests using DropBox, it is estimated that 30 seconds per file will be needed to reproduce the records via DropBox, for a total of 8,820 seconds, which equals 2.45 hours. Despite the hourly rate attributed to the lowest paid employee who has the necessary skill being higher, I am using the lower state rate of $25 per hour in assessing the fee for this request, rather than petitioning for a higher rate. $61.25 is the resulting fee for DropBox reproduction. Current Appeal In her appeal, Ms. Ortiz states: The [School’s] fee estimate in its substantive response is not responsive to the new narrow scope from October 16th… the [School] used the prior total count of public records from 9/8/23… [the School] fails to identify what total count of actual records were segregated, categorize for responsive records, nor what the review time is for records found responsive, nor compiling, their fee estimate… In [the School’s] response, the [School] fails to state how many records were responsive to this new narrow search, nor does it show the computation figures at all to add up any “review, redaction and segregation or production”… [the School] merely states “records total over 122,000 KB” without any computations like how many records total count were responsive that applied… [the School’s] fees were calculated excessively as well as were unreasonable… Unclear Appeal In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii), (b)(ii). In this case, the School has used its knowledge of the records in order to provide an estimate of the records responsive to Ms. Ortiz’s request.

Charles N. Gallo, Esq. SPR23/2570 Page 5 November 10, 2023 Based on the foregoing, the basis of Ms. Ortiz’s appeal is unclear. Ms. Ortiz is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). In this case, where the School has provided four options for Ms. Ortiz to obtain the records, including two options to obtain the records without cost, it is unclear which option Ms. Ortiz is appealing. This office encourages Ms. Ortiz to communicate directly with the School in order to arrange receipt of the records responsive to her request. Ms. Ortiz may then describe her specific objections to the School’s response. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Ortiz is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz