Glenn C. Hill v. Wrentham, Town of - Public Schools (SPR 20241490)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 30, 2024 SPR24/1490 Allan Cameron Superintendent Wrentham Public Schools 12 Taunton Street Wrentham, MA 02093 Dear Superintendent Cameron: I have received the petition of Glen C. Hill appealing the response of the Wrentham 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 May 1, 2024, Mr. Hill requested the following records between the period of April 4, 2022 and April 30, 2024: [1.] Any and all records, writings, documents and notes of every type and kind, including electronic mail, text messages and facsimile, exchanged between each, any, every and all employees of the Wrentham Public Schools, and each, any, every and all employees, agents, servants and assigns of the entity known as The Massachusetts Family Institute… [2.] Any and all records, writings, documents and notes of every type and kind, including electronic mail, text messages and facsimile, exchanged between any, every and all members of the Wrentham School Committee, and each any, every and all other members of the Wrentham School Committee… [3.] Any and all records, writings, documents and notes of every type and kind, including electronic mail, text messages and facsimile, exchanged between Wrentham School Committee member . . . and [a named individual]… The School responded on May 15, 2024, providing a fee estimate. Unsatisfied with the response, Mr. Hill petitioned this office and this appeal, SPR24/1490, was opened as a result. 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 Allan Cameron SPR24/1490 Page 2 May 30, 2024 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 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).

Superintendent Allan Cameron SPR24/1490 Page 3 May 30, 2024 The School’s May 15th response In its May 15, 2024 response, the School gave an estimate of $862.50 and stated the following: Please note that an initial review of the approximately 1,035 pages of records identified thus far as potentially responsive to the Request indicates that redactions required by law will likely need to be made to certain information exempt from disclosure. Specifically, [the School] anticipates that the records may contain the following information exempt from disclosure: [1.] The personal email address and personal cell phone numbers of staff, members of the public and School Committee members. This information is exempt pursuant to exemption (c) [2.] Information regarding collecting bargaining strategy, the disclosure of which would have a detrimental effect on the bargaining position of the School Committee. This information is [exempt] pursuant to exemption (a)… Specifically, this information is protected from disclosure by the Open Meeting Law… [3.] Attorney-client privileged information, including discussions between the School Committee and its attorney for the purpose of obtaining and providing legal advice… Each record will need to be reviewed to determine whether it contains any information exempt from disclosure, and any such information will need to be segregated and redacted prior to production. In accordance with M.G.L. c. 66, § 10(d), [the School] intends to assess a reasonable fee for the production of responsive records. [The School]’s initial fee estimate for the search, segregation, and redaction of records is detailed further below. Please note that this initial fee estimate is calculated based on the 1,035 pages of potentially responsive records identified to date, and will likely increase after potentially responsive records are identified. Additionally, the School calculates its fee estimate by explaining the following: [1.] the records sought by the Request are not freely available for public inspection; [2.] the population of the Town of Wrentham as reported in the April, 2020 U.S. Census was less than 20,000 (12,178); and [3.] the lowest paid employees who possess the necessary skill required to search for, compile, segregate, and redact the requested records are employees in the Office of the Superintendent of Schools, whose hourly rates exceed $25.00 per hour. …

Superintendent Allan Cameron SPR24/1490 Page 4 May 30, 2024 Based on [the School]’s current estimate of approximately 1,035 pages of potentially responsive records identified thus far, and an estimate of approximately 2 minutes per page, based on a review of a sample of records, [the School] provides an initial estimate of 34.5 hours to comply with [Mr. Hill’s] request. 1,035 pages X 2 minutes per page = 2,070 minutes or 34.5 hours 34.5 hours multiplied by $25 per hour yields an initial fee estimate of $862.50. Current appeal In his appeal, Mr. Hill states the following: The scope of Public Records Request… is limited, so as to only seek records created starting in April, 2022, when the person earliest-elected to, and now sitting on the School Committee, took office. … On May 15, 2024, appellant explained their position and made a written offer to respondent of ten dollars ($10) as payment in full for records production under Public Records Request WPS PRR#2. This offer was not accepted. … It is paradoxical the respondent seeks compensation for costs implied to explore the genesis and foundations of willful violation of the Open Meeting Law by the public body on which he serves. To levy fees in this case places an unjust financial burden on records requestors and appellants, whereby the costs and consequences of public body failure to comply with the law are unreasonably and unjustly shifted from the public body having committed the offense, onto requestors and appellants who invest their personal time and expertise to seek the full truth, and who also seek to create and sustain accountability of elected public bodies. … In the imposition of fees for exploration of the genesis of wrongdoing by elected public officials, the public interest in seeking the sunshine encoded and supported in the Public Records Law is deterred, and the spirit and intent of the Public Records law and the interests of justice encoded therein are weakened under the financial burden imposed on those who seek truth and accountability from elected public officials by means of records created by their hand. … Relief Sought [1.] Appellant respectfully requests respondent be ordered to waive all fees in connection with Public Records Request WPS PRR#2. [2.] Appellant respectfully requests respondent be ordered to recuse from further supervision and exercise of discretion with respect to this and all future Public

Superintendent Allan Cameron SPR24/1490 Page 5 May 30, 2024 Records Requests seeking records from the Wrentham Public School Committee, under claim of conflict of interest as articulated on pg. 6 ¶ 3 of this appeal. [3.] Appellant respectfully requests the Town of Wrentham be ordered to appoint a disinterested party having no affiliation past or present with the Wrentham Public Schools, to assume the role of Records Access Officer with respect to all future undertakings with respect to this and all future Public Records Requests seeking records created by members of the Wrentham School Committee. Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Although the School has estimated that the process of compiling, reviewing, and preparing requested records requires 34.5 hours to produce responsive records, it is not clear from the School’s estimate how much time is allocated to search, and how much time is allocated for segregation or redaction of the records. As such, the School must provide additional information regarding the tasks involved in producing these records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, the School claims that it is assessing a fee for redactions under the attorney- client privilege and Exemptions (a) and (c). However, it is unclear how the School can assess a fee for redactions under Exemption (c) in this matter. 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). I am not aware that the School has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, although the School may assess a fee for redactions required by law as in Exemption (a) and under the attorney-client privilege, it is uncertain whether the fees include time to redact records under Exemption (c). The School must clarify this.

Superintendent Allan Cameron SPR24/1490 Page 6 May 30, 2024 I encourage Mr. Hill and the School to communicate further in order to facilitate producing records efficiently and affordably. Mr. Hill may wish to narrow the parameters or include 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). Conclusion Accordingly, the School is ordered to provide Mr. Hill with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Glenn Hill