John McDonnell v. Andover, Town of - Public Schools (SPR 20252425)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2025 SPR25/2425 Nicole L. Kieser Records Access Officer Director of Communications Andover Public Schools 30 Whittier Court Andover, MA 01810 Dear Ms. Kieser: I have received the petition of John McDonnell, Esq., appealing the response of the Andover 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 May 6, 2025, Attorney McDonnell requested fifty-four categories of records from the School including documents related to the redistricting process, the engagement of the consultant for redistricting, and various e-mail communications. Previous Petition This request was the subject of a previous petition from the School. See SPR25/1322 Determination of the Supervisor of Records (May 14, 2025). In my May 14, 2025 determination, I found that the School may assess a fee for segregation and redaction of the responsive records under Exemptions (c) and (o) of the Public Records Law. Subsequently, the School responded to Attorney McDonnell on May 19, 2025, providing a fee estimate. Unsatisfied with the School’s response, and objecting to the fees, Attorney McDonnell petitioned this office, and this appeal, SPR25/2425, was opened as a result. Subsequent to the opening of this appeal, in an email to this office and Attorney McDonnell on August 20, 2025, the School provided a further response. In multiple emails to this office and the School, Attorney McDonnell reiterated his objections to the School’s responses. 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 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

John McDonnell, Esq. SPR25/2425 Page 2 August 29, 2025 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 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). The School’s May 19th and August 20th Responses In its May 19, 2025 response, the School provided numerous responsive records, along with hyperlinks to other records, indicated that it does not possess records responsive to certain items of the request, and provided a fee estimate of $8,937.50 for providing other records. The School provides the following in support of its fee estimate: Of the documents identified within the District’s possession, below is a good faith fee estimate. According to the U.S. Census, the Town of Andover has a population of 36,485 therefore pursuant to 950 CMR 32.07(2)(m), the District

John McDonnell, Esq. SPR25/2425 Page 3 August 29, 2025 may not assess a fee for the first two (2) hours of time spent searching for, compiling, segregating, redacting and reproducing the requested records. The good faith fee estimate associated with the production of the identified records in the District’s possession is as follows: Item Estimated Time Rate Estimated Cost Search time 2 hours $25.00 per hour $50.00 Compilation time 2.5 hours $25.00 per hour $62.50 Review, segregation 355 hours $25.00 per hour $8,875.00 and redaction time Credit for first two 2 hours $25.00 per hour $50.00 hours Total estimated cost 357.5 hours $25.00 per hour $8,937.50 The fee estimate is explained in further detail below, Search Time - The estimated search time is based on the actual amount of two (2) hours it took the District’s Information Technology (“IT”) Department to run searches and identify the number of responsive documents to your request . Compilation Time - The estimated compilation time is based on one (1) hour it has already taken the IT Department to initially compile records through its database and one (1) hour for staff members to compile documents related to the engagement of the consultant. Due to the size of the data file for electronic records, the IT Department estimates it will take another hour and a half (1.5) hours to export and compile the remainder of the request. This estimate is based on past experience compiling records of this size. Review, Segregation and Redaction Time - The estimated review, segregation and redaction time is based on an average of one (1) minute per document of the 21,300 records. . . . Where the District aims to remove duplicates in the review and compilation process, and there are likely duplicate documents by way of messages to multiple recipients, it is expected that this will reduce the number of documents and time necessary for review, segregation and redaction time. Furthermore, the District estimates that because of the amount of information exempt under G.L. c. 4, §7(26) will take an average of one minute per page for review, segregation and redaction. This number is based on the need to carefully read each page, make the necessary determinations regarding whether the record contains exempt information, redact any confidential information contained in the records if found, and the possibility that other individuals may need to be consulted throughout this process. Assuming that each page will take an average of 1 minute to review, I calculated for estimate purposes that assuming a one- minute review time, it will take approximately three hundred fifty seven and a half (357.5) hours to review, segregate and redact all of the records if all 21,300 documents end up in this process. Each document must be reviewed before it may

John McDonnell, Esq. SPR25/2425 Page 4 August 29, 2025 be provided to you where many of the responsive documents meet the following exemptions set forth in G.L. c. 4, § 7(26): - Exemption (a) - The requested documents contain information on students receiving special education services, which is specifically exempted from disclosure by statute in that the documents implicate student record/education record information under 603 CMR 23.00 and the Family Educational Rights and Privacy Act (“FERPA”). This information will need to be redacted from the responsive documents. - Attorney-Client Privileged Communications - The requested communications contain information regarding advice provided by attorneys to the District. These communications will need to be redacted to preserve attorney-client privilege. - Exemption (c) - The documents contain medical files, information and other materials/data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. - Exemption (c) requires a balancing test: where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). Here, the public interest does not substantially outweigh the seriousness of the invasion of privacy addressed below. There is no public interest in a private individual’s personal contact information, medical information or information regarding special education services. Any further disclosures would constitute an unwarranted invasion of privacy. As to the unwarranted invasion of personal privacy, the application of this exemption requires an evaluation of the following factors: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). Here, the PETA balancing test results in a finding that disclosing these categories of information would constitute an unwarranted invasion of privacy. As to the first element, disclosure of information concerning medical information, personal contact information and access to special education services would result in personal embarrassment to an individual of normal sensibilities. See, e.g., Champa v. Weston Public Schools, 473 Mass. 86, 97 (2015).

John McDonnell, Esq. SPR25/2425 Page 5 August 29, 2025 As to the second element, the materials contain intimate details of a highly personal nature. It is well-settled that such intimate details include medical conditions and reputation. See PETA, 477 Mass. at 292, n. 13; Attorney Gen. v. Assistant Comm’r of the Real Prop. Dep't of Boston, 380 Mass. 623, 626 n.2 (1980). Moreover, SPR has previously determined that personal phone numbers and email addresses favor a finding of non-disclosure. See SPR 13/077. As to the third element, the same information would not be available from other sources other than directly asking individuals for this information. - Exemption (o) - The requested documents contain home addresses, personal email addresses and home telephone numbers of public employees. In the event the actual time to review and redact the requested records is less than the estimate provided, the District will refund a portion of your payment accordingly. Similarly, in the event the actual time to review, segregate and redact the requested records is greater than the estimate provided, the District reserves the right to require you to pay an additional fee before releasing any responsive records. Current Appeal In his appeal petition, Attorney McDonnell states that he is “writing to appeal the Town of Andover’s Fee Estimate.” He further notes that he “will also reach out to the Town of Andover, through [the Records Access Officer], to determine whether there is a manner in which she can provide [Attorney McDonnell] with certain of the requested documents in a more affordable manner.” Attorney McDonnell goes on to explain the following: To the extent that the Town will agree to establish further protocols relating to its gathering of the E-mails requested, which would be considered “Electronically Stored Information” (“ESI”), I can agree to work with the Town on the Protocol so that certain search terms used to harvest the E-mail communication requested, would be applied so that the Town’s search does not pick up “Exempted Information” or alleged “Confidential or Privileged Attorney Communications. I agree that I will work with the Town on search terms to avoid exempted information. If this is an issue, with agreement on certain search terms, we should be able to agree on an ESI search Protocol that could identify E-mail communications amongst, and between, the School Committee members, the Superintendent and the Town’s Consultant regarding redistricting, that do not contain exempted information. . . . Based on the above, where Attorney McDonnell and the School have shown a willingness to narrow the scope of the request, I find it unnecessary to opine on the School’s fee estimate at this time. This office encourages Attorney McDonnell and the School to continue to communicate directly in order to facilitate providing records more efficiently and affordably.

John McDonnell, Esq. SPR25/2425 Page 6 August 29, 2025 Attorney McDonnell may consider narrowing the scope of his request, as described above, to enable the School to provide the records more efficiently and affordably. The School must use its superior knowledge of the records to suggest any potential reasonable modifications to the request. See G. L. c. 66, § 10(b)(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 the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. If outstanding issues remain after Attorney McDonnell and the School communicate further as described above, Attorney McDonnell may file a further appeal within ninety (90) calendar days. See 950 C.M.R. 32.08(1). Unable to Opine on Exemptions and Attorney-Client Privilege at this Time In his appeal petition, Attorney McDonnell also objects to the School’s claims under Exemptions (a), (c), (o) and the attorney-client privilege, and argues the following: In order to support its Fee Petition, the Town of Andover asserts three exemptions, as well as the right to withhold “Attorney Client Privileged Documents.” However, it has generally made these assertions regarding my requests and has not offered a specific basis for not providing documents that are stored in electronic files that would not require individual review and redaction. For example, I am not looking for any information protected by FERPA nor any other confidential information, nor Attorney Client Privileged documents. Yet, the Town has blended everything together under the generalized umbrella of exemption and privilege. Please be advised, where the School has yet to produce the records described in its fee estimate, I am unable to address the claims concerning Exemptions (a), (c), (o) and the attorney- client privilege at this time, as the contents of these records are unclear. Once records are provided, Attorney McDonnell may appeal the substantive nature of the School’s response within ninety (90) calendar days. See 950 C.M.R. 32.08(1). Agency Relationship In its May 19th response, regarding Item 22 of the request, for “all survey responses submitted by the residents concerning the Consultant request for survey responses,” the School states that it “does not possess records responsive to this request, as they are in the possession of DillingerRAD.” In its August 20th response, the School further argues that “as to the District’s response to item 22, the survey was administered by DillingerRAD, a District consultant, and the responses were not transmitted to any District employees. At this time, the responses remain in the sole custody and control of DillingerRAD.” In his appeal petition, Attorney McDonnell contends that the School “pursuant to a contract, engaged the consultant to act as an agent for the Town during the School Committee’s

John McDonnell, Esq. SPR25/2425 Page 7 August 29, 2025 Redistricting Process, also during this process he offered certain recommendations and gathered public input and feedback from Andover residents. The Consultant acted as a conduit for the feedback and input submitted, thus these are documents and communications that are public documents and although they may be in the possession of the consultant they must be produced.” The School is advised that 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). Further, 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). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. Sch. Comm. of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. In this case, where it appears that an outside consultant may have acted as an agent on behalf of the School, it is unclear whether the records for the School’s agents were searched. As such, I find that the School must provide additional information detailing its search in order to determine if the School has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. Conclusion Accordingly, the School is ordered to provide Attorney McDonnell 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 the response to this office at pre@sec.state.ma.us. Attorney McDonnell may further appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

John McDonnell, Esq. SPR25/2425 Page 8 August 29, 2025 Sincerely, Manza Arthur Supervisor of Records cc: John McDonnell Esq. Jennifer F. King, Esq.