Sinacola, Nancy v. Advanced Math and Science Academy (SPR 20140327)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 5, 2014 SPR14/327 Mr. Edwin F. Landers, Jr., Esq. Morrison Mahoney, LLP 250 Summer Street Boston, MA 02210 Dear Attorney Landers: I have received the petition of Nancy J. Sinacola appealing your response made on behalf of your client, the Advanced Math and Science Academy (AMSA), a Massachusetts Charter School to her request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Sinacola requested records disclosing salary information for employees of AMSA. On behalf of AMSA you provided a fee estimate to provide any public records in the custody of AMSA; however, you also explained that it is unclear whether AMSA is a public entity subject to the mandatory provisions of 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, § 10(c); 950 C.M.R. 32.08(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 town 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, § 1 0(c ); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Fees for Copies ofP ublic Records A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Edwin F. Landers, Jr., Esq. SPR14/327 Page Two September 5, 2014 The Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records. 950 C.M.R. 32.03. The search and/or segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). On May 30, 2014 you provided Ms. Sinacola with a written, good faith estimate for the cost of providing the records. The estimate from AMSA includes sixteen (16) hours of labor at seventeen dollars and thirty-one cents ($17.31) per hour and three dollars ($3.00) for copies of the records at twenty cents ($.20) per page. In her petition to this office Ms. Sinacola raised concern as to whether AMSA would honor her request if it is determined that AMSA is not subject to the Public Records Law. In answer to a question by my staff regarding the sixteen hours of labor estimated by AMSA, you explained that the records are not centrally located nor are all the records computerized. It is my understanding that the sixteen hours oflabor at the lowest paid hourly rate is for "search time" and the time it takes to create a document that will provide Ms. Sinacola with all the personnel names and the stipends that they have received in 2011, 2012 and 2013. You further explained that the lowest paid AMSA clerical employee will need to review each employee file in order to see whether a stipend was provided. I find this explanation to be acceptable and in compliance with the Regulations. The remaining issue is the applicability of the Public Records Law to AMS A. As explained to you both in a conversation between you and a member of my staff, as further clarified in a voicemail message I left for you during the week ending August 29, 2014, records of charter schools are presumed to be public. It is the burden of AMSA to overcome this presumption; a burden that AMSA has not yet met. Accordingly, whereas I find the fee estimate is reasonable I will consider this administrative appeal closed with the proviso that AMSA must comply with Ms. Sinacola' s request within ten (1 0) days or provide a written explanation to Ms. Sinacola and this office to rebut the presumption that AMSA is subject to the Public Records Law. 'L!.."~·~ms Supervisor of Records cc: Ms. Nancy J. Sinacola