Bill Hoch, Esq. v. Taunton, City of - Public Schools (SPR 20160215)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April 8, 2016 SPR16/215 Mr. Ross Kimball, Esq. Sloane & Walsh, LLP 3 Center Plaza Boston, MA 02108 Dear Attorney Kimball: I have received the petition of Bill Hoch, Esq. ofEmCo Consulting, LLC appealing the response of the City of Taunton-Public Schools (Schools) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Hoch requested copies of policies or practices for six categories of subject matter, training records, legal agreements between the Schools and two law firms, bills submitted to the Schools for legal services and records showing mold testing at the Mulcahey School. The Schools provided Attorney Hoch with a fee estimate on February 26, 2016. Mr. Hoch appealed, stating his beliefthat the Schools did not indicate whether all records will be provided, and if not, what exemptions in the Public Records Law permit the Schools to withhold particular records. 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). Timeliness of response Attorney Hoch explained in his petition that initially the Schools did not respond in a timely manner to his January 13, 2016 public records request. Mr. Hoch granted an extension of time, and the Schools provided him with a written estimate, labeled, "Invoice." Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. All records custodians must OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Ross Kimball, Esq. SPR16/215 Page2 April 8, 2016 comply with both the Public Records Law and the Regulations with respect to the timeliness of response. On April 4, 2016, you contacted an attorney on my staff to inquire about this appeal, and what would be necessary to resolve the matter. The attorney on my staff explained the appeal process to you as well as the obligations of custodians of records in responding to a request for public records. Fee estimate The Schools have assessed four (4 ) hours of "search time" at the hourly rate of the lowest paid administrative assistant at the Schools Administrative Office, which includes searching for, copying andre-filing the records. The Schools also assessed a fee for the number of copies at twenty cents ($.20) per page, and the cost of mailing the records to Attorney Hoch at five dollars and ninety-five cents ($5.95). 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) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). The Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1 )(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and re-file public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The costs for search and/or segregation must reflect the actual cost of complying with a particular request. G. L. c. 66, § 1O (a). Whereas, the Schools have used the lowest paid administrative staff member to conduct the search and possible segregation of the records, I find that the estimate is reasonable regarding those tasks. Revised fee for copies In the April 4 telephone discussion with you, my staff attorney explained that the section of the Regulations associated with fees for copies was amended on February 29, 2016. From that date forward records custodians may only charge a maximum fee of five cents ($.05) per page for both 8 Yz x 11" black-and-white paper and computer-generated copies. It is my

Mr. Ross Kimball, Esq. SPR16/215 Page 3 April 8, 2016 understanding that the Schools intend to provide Attorney Hoch with a revised fee estimate reflecting the new rate for copies of the responsive records. Accordingly, I will consider this administrative appeal closed with the proviso that Attorney Hoch receives a revised response to his public records request, and a revised written, good faith estimate for the cost of copies at five cents ($.05) per page within ten (1 0) days in compliance with this order and the Public Records Law and its Regulations. If the Schools maintain that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Attorney Hoch a written explanation, with specificity, how a particular exemption applies to each record. 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 ofthe responsive record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer gene al questions regarding the Public Records Law. In addition, members of my staff will visit a rec rds custodian in person to conduct training workshops on the Public Records Law upon r quest. Please contact my office directly at the telephone number provided in this dete · atio for further information. ours, ervisor of Records cc: Mr. William V. Hoch, Esq.