School defies Supervisor of Records, refuses to produce index without $245 fee

The Acton-Boxborough Regional School District is now playing games with the freedom of information laws in Massachusetts by refusing to follow the clear instructions of the Secretary of State's Public Records Division after the Division's Supervisor of Records ordered the release of certain documents, an index to all the documents responsive to the request, and a revision of the original fee estimate.

On May 21, 2015, in response to an appeal by Acton Forum editors Allen Nitschelm and Charles Kadlec, the Supervisor of Records issued a three-page ruling which compelled certain actions of the School District. But through the school's attorney, the response to the order was a rehash of its previous refusal, a restatement of the way the fee was initially calculated, and no 'custodial index' of records which would allow the complainants (Nitschelm and Kadlec) to decide which specific documents to request.

The Supervisor's order, found at the bottom of page 3 (See http://actonforum.com/sites/default/files/SecState-05-21-2015.pdf), states, "The School is hereby ordered to provide the minutes of the October 9, 2014 Executive Session." That order was not followed as no minutes were produced.

The Supervisor also ordered that responsive records that the School maintains are exempt from disclosure must explain "how a particular exemption applies to each record." (emphasis mine.) The School ignored this and instead described how the body of records were exempt in their entirety without referencing specific records.

If records were being withheld, then "The School must provide Mr. Nitschelm with a custodial index." No index was provided.

The School was also ordered to provide a revised fee estimate. The fee estimate was exactly the same as before.

These public document requests are all revolving around the disappearance of a top School administrator, Liza Huber, who was the Director of Pupil Services. She went "on leave" in September or October, 2014, and has not been participating in School Committee meetings since. We have asked several questions about her current duties and have gotten no response to any of our questions. The School has decided to stonewall.

We have been unable to find any policy in either Ms. Huber's employment contract or the Administrators' Benefit's Manual which would allow a ten-month paid leave of absence.

The only documents we were given related to her annual W-2 and her biweekly payroll records, which show that Ms. Huber has continued to be paid since her departure, at full salary, and presumably with benefits. Ms. Huber was making about $125,000 per year. Superintendent Glenn Brand indicated Huber would be paid through the end of the school year, despite apparently doing no work.

Since public officials have no legal obligation to answer questions (and the School Superintendent has refused to answer any of our questions), Acton Forum asked for documents. Other than the payroll records which were heavily redacted (we have appealed the redactions to the State), no other documents were provided. Instead, the School claimed all the documents were and would be shielded from public view because they related to either personal matters, personnel matters, or attorney-client privilege, or all three.

To get any documents that do not fall under the specific exemptions, if any do exist, will cost $245, a figure that the State ordered the School to recalculate, and the School responded by quoting the same fee. It is possible that once the fee is paid, the School will determine that there are no documents that can be provided.

By not producing the "custodial index" as required, I believe the School is attempting to use a high fee to discourage further document requests. If the School had provided an index of documents, but refused to make key documents available under the exemptions it has repeatedly cited, Acton Forum could decide not to request further information and the School would not have been paid to create the index.

Under protest, Nitschelm and Kadlec have decided to pay the fee. While we recognize that it can be burdensome to respond to public document requests, this is a "necessary evil" in a democracy where public monies are being spent. Our only purpose is to provide a check on whether paying someone for apparently not working for almost a full year, at a cost to taxpayers of around $125,000, is justified and why. But we feel the fee is unfair as having such a high fee for any "memos and emails" would be a serious impediment for other members of the public to get public documents.

Acton Forum had requested emails and memos related to Ms. Huber's replacement, Mary Emmons, who was appointed as Interim Director of Pupil Services on October 22, 2014, retroactive to September 5, 2014. That request yielded 27 pages of documents with no fee charged. In that request, we learned that Emmons had been given a $15,000 raise retroactive to July 1, 2014, even though she wasn't publicly appointed until the end of October. Her annual salary has been set at $117,500. Emmons is scheduled to get another promotion on July 1st, to Director of Special Education. We have requested her new employment contract which is not yet available.

Acton Forum is no stranger to requesting public documents from the town or the school system. But fees other than for copying documents should be reserved for requests that require research. If searching for emails and memos costs $245, and that is before the School determines if any such documents exist or will be provided, how many ordinary citizens would be willing to spend that type of money to gain access to information which is and should be part of the public domain?

Acton Forum has no revenue, so this fee will come out of our pockets. We will appeal the fee because we believe charging $245 for a handful of documents is outrageous and discourages ordinary citizens from requesting documents which can be effectively withheld by charging high fees for their production. We have also decided to pay the fee so the School will be forced to produce the required index and any documents it chooses to release without further delay.

The original concept of charging fees related to photocopying costs. The language that the State recommends when making a public document request talks about a custodian informing a requester if a fee exceeds $10. (See http://www.sec.state.ma.us/pre/prereq/reqidx.htm).

Now, many documents are available electronically (like emails). So instead, some public entities have decided to charge document-requesters the cost to search for, and redact, the documents, at some hourly rate. In this case, we are being quoted $35 per hour for an estimated seven hours of work to respond to our request. How many citizens with routine requests would be willing to pay $245 just to find out what is available?

The Supervisor also ordered the release of the Executive Session minutes, which were not produced by the School. This order will be appealed to the Attorney General's office which handles Open Meeting Law complaints.

For a link to the School's attorney's nine-page denial of our request despite the order from the Secretary of State's office to comply, click here: http://actonforum.com/sites/default/files/DOC060815-003.pdf

For a link to the Secretary of State's Public Records Division order to produce a custodial index, to produce Executive Session minutes, to recalculate the fee, and to indicate which specific documents are being withheld and why, click here: http://actonforum.com/sites/default/files/SecState-05-21-2015.pdf

If any of the links are glitchy, try opening up this page in Google Chrome. We have found Internet Explorer to be inconsistent.

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March 7, 2015: Former School Administrator continues to receive salary despite not working:
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March 13, 2015: School hires new law firm to avoid disclosure:
http://www.actonforum.com/story/school-hires-new-law-firm-avoid-disclosure

March 17, 2015: Law Firm gives AB School District Deep Discount:
http://www.actonforum.com/story/law-firm-gives-ab-school-district-deep-d...

May 28, 2015: Acton Forum wins round one with school district: http://www.actonforum.com/story/acton-forum-wins-round-one-school-district

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