DaSilva, Ana v. Dartmouth, Town of - Public Schools (SPR 20260582)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 3, 2026 SPR26/0582 Kathleen Genthner Records Access Officer Dartmouth Public Schools 8 Bush Street Dartmouth, MA 02748 Dear Ms. Genthner: I have received the petition of Ana DaSilva appealing the response of the Dartmouth 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 January 30, 2026, Ms. DaSilva requested the following records related to an identified individual: [1] Employment Records  Start and end dates of employment  Positions held and coaching assignments  Employment contracts or offer letters  Resignation letter, separation agreement, or documentation of departure [2] Complaints, Reports, and Investigations For the period January 1, 2018 – December 31, 2024, please provide:  Any complaints, reports, or concerns submitted to the district involving or referencing [an identified individual]  Any internal investigations, findings, or determinations involving or referencing him  Any disciplinary records, including written warnings, reprimands, or corrective action  Any communications with legal counsel regarding complaints or investigations involving him… 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

Kathleen Genthner SPR26/0582 Page 2 March 3, 2026 [3] Communications Emails, memos, or written communications between or involving:  [An identified individual]  Dartmouth High School administrators  Athletic Department staff  Superintendent’s Office …containing [seven identified] keywords[.] Please include a description of the search conducted, including custodians, systems searched, and search terms used, as required by 950 CMR 32.06(3). [4] Records Shared With or Received From External Agencies Any records sent to or received from law enforcement, legal counsel, or other school districts regarding [an identified individual]… [5] Policies and Procedures  Any policies, procedures, or protocols referenced or applied in connection with any complaint, report, or investigation involving him. The School responded on February 13, 2026, providing a fee estimate. Unsatisfied with the School’s response, Ms. DaSilva petitioned this office and this appeal, SPR26/0582, 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.

Kathleen Genthner SPR26/0582 Page 3 March 3, 2026 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 February 13th Response In its February 13, 2026 response, the School stated: DPS expects that its review of the requested records will likely yield documents which are exempt from disclosure or subject to redaction under the Public Records Law, under a number of different exemptions. The Request seeks personnel record information, which is likely to include information subject to withholding pursuant to Exemption (c)… The Request also seeks communications with legal counsel, which is likely to include communications between DPS and its attorneys for the purpose of legal advice which has not been shared with the public, and which is exempt from disclosure under the attorney-client privilege. The Request additionally seeks emails between school employees which are likely to include student record information protected from disclosure under state and federal student records laws (the Federal Education Rights Privacy Act, M.G.L. Chapter 71 Section 34A to 34H, and 603 CMR 23.00 et. seq.) and will need to be redacted. Additionally, the School provided a fee estimate of $89,077.50 to produce records responsive to Item 3 of the request. In support of its fee estimate, the School provided the following information: DPS has identified 106,684 emails responsive to Item #3 of the Request. Based on an estimate of approximately 2 minutes per email, given that many emails contain

Kathleen Genthner SPR26/0582 Page 4 March 3, 2026 multiples pages, DPS provides an estimate of 3,556.1 hours of segregation and redaction time to comply with your request. 106,684 emails X 2 minutes per email = 213,368 minutes or 3,556.1 hours of segregation and redaction time[.] In addition to the above projection, DPS has already spent approximately 4 hours conducting the email search, and DPS conservatively estimates that it will spend approximately 5 hours on the search, segregation and redaction of other, non- email records included in the request for a total of 3,565.1 hours. After excluding the first two hours of employee time, 3,563.1 hours multiplied by $25 per hour yields a fee estimate of $89,077.50. The actual fee to produce the responsive emails may vary based on the actual time spent to complete the necessary segregation and redaction process. Current Appeal In her appeal petition, Ms. DaSilva argued that the School’s fee estimate is improper and also stated, “DPS failed to state whether responsive records exist for Items 1, 2, 4, and 5.” Appropriate Definitions, Parameters, and Time Frames In Friedman v. Div. of Admin. Law Appeal and Bureau of Special Educ. Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Div of Admin. Law Appeal and Bureau of Special Educ. Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents;

Kathleen Genthner SPR26/0582 Page 5 March 3, 2026 (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. In light of the School’s fee estimate, where it has identified 106,684 potentially responsive emails to Item 3 of the request, many of which “contain multiples pages,” this office encourages Ms. DaSilva and the School to communicate directly in order to facilitate providing records more efficiently and affordably. Ms. DaSilva may consider narrowing the scope of her request 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. Additional Records Further, based on the School’s response, it is unclear whether the School possesses additional records responsive to Items 1, 2, 4, and 5 of the request, which do not appear to be accounted for in the School’s fee estimate. 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). Custodians are expected to use their superior knowledge of the records in their custody to assist the requestor in obtaining the desired information. See 950 C.M.R. 32.04(5). The School must clarify this matter. Conclusion Accordingly, the School is ordered to provide Ms. DaSilva 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. Ms. DaSilva may appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Kathleen Genthner SPR26/0582 Page 6 March 3, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Ana DaSilva