Andrew McIsaac v. South Shore Regional School District (SPR 20170012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 5, 2017 SPR17/012 Holly Ditchfield Human Resources Coordinator South Shore Regional School District 476 Webster Street Hanover, MA 02339-1215 Dear Ms. Ditchfield: I have received the petition of Andrew Mcisaac appealing the response of the South Shore Regional School District (School) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Mcisaac requested "all e-mail messages generated in September 20 16" from a specifically identified email address. This request was the subject of a previous appeal. See SPR 17/009 Determination of the Supervisor of Records (January 3, 2017). I closed SPR17/009 in light ofthe School's January 3, 2017 response to Mr. Mcisaac. This response contained a fee estimate of $476.76 for the provision of responsive records. Subsequently, Mr. Mcisaac appealed the January 3 response and this appeal (SPR 17/0 12) 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, § 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, § 10 ( 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). 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. 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

Holly Ditchfield SPR17/012 Page 2 January 5, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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). Once fees are paid, a records custodian must provide the responsive records. 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 general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Fees A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 1O (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 ($10.00), custodian of records shall provide written good faith estimate}. Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the current Regulations, a custodian of records may assess a maximum fee of five cents ($.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 its January 3 fee estimate, the School explains "[t]here are approximately 1,107 email messages that are generally responsive to your request, many of which are expected to contain more than one page." You explain "[e]ach message must be printed, redacted where necessary and converted to a .pdf document." The School initially intended to charge $0.20 per page for a total of $223.40 in copying costs. The School is advised that it is not permitted to assess a fee above the $.05 per page amount indicated in the Regulations. Further, the School may not assess a copying fee for the cost of printing records for the purpose of "segregating" them. See 950 C.M.R. 32.06(1 ); 950

Holly Ditchfield SPR17/012 Page 3 January 5, 2017 C.M.R. 32.03. Further, the School must confirm whether the 1,107 emails refer only to responsive emails, i.e., those "generated in September 2016" by the specific email address. The School also estimates it will take eight (8) hours for "search and segregation time" at an hourly rate of $31.67, totaling $253.36. Based on the January 3 response, it is unclear how much time is required per email to comply with the request. The School must also explain why this hourly rate is that of the lowest paid person capable of performing the task. I understand an attorney on my staff contacted and you indicated the School intends to provide a supplemental response to Mr. Mcisaac. Conclusion Accordingly, I will now consider this administrative appeal closed with the proviso that the School provide a revised response to Mr. Mcisaac prepared in a manner consistent with this order, the Public Records Law, and its Regulations. Mr. Mcisaac may appeal the substantive nature of the School's response within ninety (90) days. See 950 C.M.R. 32.08(1). 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 Sincerely, ~wf(fwAA~ Rebecca S. Murray Supervisor of Records cc: Andrew Mcisaac