DaSilva, Ana v. Dartmouth, Town of - Public Schools (SPR 20260998)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2026 SPR26/0998 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  Job titles held  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 SPR26/0998 Page 2 March 26, 2026 [3] Communications Emails, memos, or written communications between or involving:  [Six identified individuals]  Any Dartmouth High School administrator …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 MCAD, legal counsel, or law enforcement 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 [an identified individual]. The School initially responded on February 13, 2026, providing a fee estimate. Previous Appeal This request was the subject of a previous appeal. See SPR26/0581 Determination of the Supervisor of Records (March 3, 2026). In my March 3rd determination, I encouraged Ms. DaSilva and the School to communicate in order to facilitate providing records more efficiently and affordably, in light of the School’s fee estimate, which had identified 99,751 potentially responsive emails to Item 3 of the request. Additionally, I ordered the School to clarify whether it possesses any additional records responsive to Items 1, 2, 4, and 5 of the request. The School responded on March 17, 2026. Unsatisfied with the School’s response, Ms. DaSilva petitioned this office and this appeal, SPR26/0998, 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

Kathleen Genthner SPR26/0998 Page 3 March 26, 2026 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 February 13th and March 17th Responses In its initial 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.

Kathleen Genthner SPR26/0998 Page 4 March 26, 2026 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 $83,300.00 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 99,751 emails responsive to Item #3 of the Request. Based on an estimate of approximately 2 minutes per email, given that many emails contain multiples pages, DPS provides an estimate of 3,325 hours of segregation and redaction time to comply with your request. 99,751 emails X 2 minutes per email = 199,502 minutes or 3,325 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 3,334 hours. After excluding the first two hours of employee time, 3,332 hours multiplied by $25 per hour yields a fee estimate of $83,300. The actual fee to produce the responsive emails may vary based on the actual time spent to complete the necessary segregation and redaction process. In its March 17, 2026 response, the School provided “an appointment letter and collective bargaining agreement in response to Item 1, and a policy in response to Item 5.” In addition, the School stated: DPS hereby clarifies that it does possess records responsive to Items 1, 2, 4, and 5 of the Request... Additional records which are responsive to Items # 1, 2, 4, and 5 will need to be reviewed for potential redactions as described in DPS’s February 13, 2026 response… The additional responsive records were included within the records used to calculate the fee estimate provided in the February 13, 2026 response. As a result, the fee estimate remains as set forth in the February 13, 2026 response and applies to the remaining records responsive to Items # 1-5 of the Request. Current Appeal In her appeal petition, Ms. DaSilva argued: [1] DPS did not provide the required search description… [2] DPS did not issue a revised fee estimate, despite acknowledging additional responsive records… [3] DPS did not identify which records exist in each category…

Kathleen Genthner SPR26/0998 Page 5 March 26, 2026 [4] DPS did not produce all non-exempt records… [5] DPS again asserted exemptions without reviewing the records… [6] DPS’s supplemental response does not comply with the Determination… 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; (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 this case, the School has clarified that it possesses additional records responsive to Items 1, 2, 4, and 5 of the request, and has confirmed that its February 13th fee estimate pertains not only to Item 3, but also to all of the remaining outstanding records responsive to Items 1, 2, 4, and 5. However, in light of the School’s fee estimate, where it continues to identify 99,751 potentially responsive emails, many of which “contain multiples pages,” this office continues to encourage 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

Kathleen Genthner SPR26/0998 Page 6 March 26, 2026 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. With regard to Ms. DaSilva’s objections regarding the School’s search and identification of all responsive records, please be advised that where the School has yet to produce the records subject to the fee estimate, I find these matters cannot be addressed at this time, as the contents of these records are unclear. Once the records are provided, Ms. DaSilva may appeal the substantive nature of the School’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Conclusion If outstanding issues remain after Ms. DaSilva and the School communicate further as described above, Ms. DaSilva may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Ana DaSilva