Andrew McIsaac v. Berkshire Arts and Technology Charter Public School (SPR 20161236)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 30,2016 SPR16/1236 Julia Bowen Executive Director Berkshire Arts & Technology Charter Public School One Commercial Street P.O. Box 267 Adams, MA 01220 Dear Ms. Bowen: I have received the petition of Andrew Mcisaac appealing the response of the Berkshire Arts and Technology Charter Public School (School) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Mcisaac requested "all email messages created in November 2016 by Julia.bowen@bartcharter.org." The School provided responses on December 24, 2016 and December 30, 2016. Mr. Mcisaac appealed the School's December 30 response. It is his position that the School: 1) failed to appropriately cite any exemption to the Public Records Law that justifies withholding information; and 2) failed to provide a good faith fee estimate for the provision of responsive records. Exemptions In its response the School indicated that responsive records may be withheld under an exemption to the Public Records Law. If, upon payment of the estimated fee by Mr. Mcisaac, the School maintains that any portion of the responsive records are exempt from disclosure it must provide Mr. Mcisaac 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 of the responsive record. I find the School merely notified Mr. Mcisaac the responsive records may be withheld or redacted, as would any government record. Whereas I fmd the School has not yet asserted an exemption, I will consider this portion of the appeal closed. 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

Julia Bowen SPR1611236 Page 2 December 30, 2016 Fee estimate A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § lO(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 ($1 0.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the current Regulations, a custodian of records may assess a maximum fee of five cents ($.05) per page for a black and white single or double-sided photocopy of a public record. See 950 C.M.R. 32.06(1)(a). In addition to the copying fee, 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, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). In the School's December 30 response you indicate "[d]ue to the number ofthe documents requested, I estimate that it will take me at least 40 hours to review the documents and separate those documents prohibited from disclosure by statute. Accordingly, we require from you a records processing fee of $2,221.60 before we begin assembling the requested documents." However, the School has not explained how many responsive records may exist; as such, it is unclear why forty ( 40) hours is needed for search and segregation time. Further, the School must explain what hourly rate is being used and how it is that of the lowest paid person capable of performing the task. Mr. Mcisaac also informed this office he made separate requests to you as well as April West, Principal of the School. It is unclear whether the December 30 response was made on behalf of both yourself and Ms. West, or just yourself. The School must clarifY this matter. I understand an attorney on my staff contacted you about this appeal. Conclusion Accordingly, the School is hereby ordered to provide Mr. Mcisaac with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be provided to this office. It is preferable to send an electronic copy ofthis response to this office at pre(@,sec.state.ma.us.

Julia Bowen SPR16/1236 Page 3 December 30, 2016 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Mcisaac