Andrew McIsaac v. Berkshire Arts and Technology Charter Public School (SPR 20170030)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 17, 2017 SPR17/030 Julia Bowen Executive Director Berkshire Arts and Technology Charter School 1 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 School (School) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Mcisaac requested a copy of all emails created by julia.bowen@bartcharter.org in November 2016. The School provided a response including a written, good faith estimate on January 5, 2017. Mr. Mcisaac appealed. Prior appeal The responsive records were the subject of a prior appeal and determination. See Supervisor of Records Determination (December 30, 2016). In my determination I found that the School did not provide any specificity concerning its written, good faith estimate to comply with the Public Records Law Access Regulations. See 950 C.M.R. 32.06 (fees for public records). I note that the request for the responsive records was made prior to the new provisions of the Public Records Law (Law) that went into effect on January 1, 2017. Therefore, the prior Law's provisions and regulations apply to this request and appeal. Written, good faith estimate 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. In your January 5, 2017 written, good faith estimate, you explained that in your capacity as Executive Director ofthe School you send many emails in the course ofyour day. You state that you sent over eight hundred (800) emails in the month ofNovember 2016. Due to the 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 SPR17/030 Page 2 January 17, 2017 confidential nature of many of the emails, no one else at the School has access to your emails, and you cannot provide access to your emails because access by another individual in the office will violate the Massachusetts Data Security Regulations. (201 C.M.R. 17). Therefore, you informed Mr. Mcisaac that your hourly rate of $55.54 is the lowest-paid hourly rate of the individual who can search for and segregate (redact) the exempt content from the email records. You estimate that it would take you approximately three (3) minutes per email, or twenty (20) emails per hour to review and redact any exempt material from the approximately 800 emails. The time to complete the task of segregation is totaling forty ( 40) hours to complete the tasks. Mr. Mcisaac was advised that the total cost to obtain the emails is $2,221.60. A record custodian may charge for the cost of complying with a public records request as long as the fees are reasonable and in compliance with the Public Records Law Access Regulations (Regulations). 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 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, § lO(a). On January 13th by telephone and in a January 16th email, you contacted an attorney on my staff to explain that you do not have an administrative assistant, that you are the only person authorized to have access to your email records, and cannot use a lower hourly rate for an individual because you do not have administrative staff. Further, you stated that due to the confidential nature of the emails that you send and receive, some quite lengthy, you believe that three (3) minutes per email is a reasonable amount of time to review each email and email trail to determine what needs to be redacted, and actually redact that information. You believe that the estimate is accurate as to the amount of time and hourly rate used. ih In a January 1 conversation with my staff attorney, you declined to reduce the hourly rate and number of hours. You have suggested that if Mr. Mcisaac limited his request to a particular subject matter, you would be able to isolate those emails instead of reviewing and redacting one month of emails, and the estimate would be lower. Exemptions Mr. Mcisaac indicated that the School did not specifically claim exemptions to support its estimate for segregation time. Your January 5 response stated that the emails may contain exempt material, such as student record and personnel information, however, no exemptions were claimed with specificity.

Julia Bowen SPR17/030 Page 3 January 17, 2017 Order Whereas the School has not overcome its statutory and regulatory obligation of supporting the written, good faith estimate regarding the hourly rate and number of hours to search for and segregate the records, I find that the School has not justified its estimate. Accordingly, the School must revise its written, good faith estimate by citing specific exemptions and the reasons they apply and then provide Mr. Mcisaac with the revised estimate within ten (1 0) days and in a manner consistent with this order, the Public Records Law and its Regulations. A copy of your revised estimate 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, ~~· Rebecca S. Murray Supervisor of Records cc: Andrew Mcisaac