Andrew McIsaac v. Berkshire Arts and Technology Charter Public School (SPR 20170128)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 13, 2017 SPR17/128 Julia Bowen Executive Director Berkshire Arts and Technology Charter Public School One Commercial Place P.O. Box 267 Adams, MA O1 220 Dear Ms. Bowen: I have received the petition of Andrew Mclsaac appealing the response of the Berkshire Arts and Technology Charter Public School (School) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Mclsaac requested a copy of all emails to and from Julia Bowen from November 1 through November 30, 2016. Prior appeals The requested records were the subject of two prior appeals. See SPR16/1236 and SPR17/030 Supervisor ofRecords Determinations (December 30, 2016 and January 17, 2017). In my January 17th determination, I found that the School had failed to support its written, good faith estimate regarding the hourly rate of $55.54 and the number of hours to search for and segregate the records. I ordered the School to provide a revised written, good faith estimate within ten (10) days. The School provided a response on January 2ih which Mr. Mclsaac appealed, and the current appeal was opened. The basis for Mr. Mclsaac's newest appeal is that the School has still failed to specifically explain the exemptions claimed in the response, and that the lowest paid hourly rate was not used to assess the fees. 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. Fees 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 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 SPRl 7/128 Page 2 February 13, 2017 a request for public records is expected to exceed ten dollars ($10.00), custodian ofrecords shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). The Regulations provide that in cases where search or segregation time is necessary a custodian ofrecords may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1 )(c ) . The Regulations define "search time" as the time needed to locate, pull from the file, copy and re-file public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § lO(a). Under the Regulations, a custodian of records may assess a maximum fee of five cents ($.05) per page for a black and white single or double-sided photocopy of a public record. See 950 C.M.R. 32.06(l)(a). The School's January 2111 response In your January 2ih letter you explained that you reviewed the first twenty-five (25) of the 814 responsive emails and applied the process you believe you will need to undertake to search and segregate the emails. You state "[o ]f those 25 emails, two contained information exempt from disclosure under Exemption (a), one was exempt from disclosure under Exemption (b), one was exempt under both (a) and (b), and one was exempt under Exemption (e)." Search and segregation time You explain "it took 54.5 minutes to search the emails to determine whether they contained information protected from disclosure, to segregate those that were protected from those that would be disclosed, and to redact protected information from the emails." Based on this sample size, you estimate it will take 29.58 hours to review all the responsive emails. However it is unclear how much of the 29.58 hours are allocated to "search time" and how many of the hours are allocated to "segregation time." The School must clarify the amount of time needed for each of the tasks discussed in the January 2ih fee estimate, i.e., the amount of minutes required per email. The School also has not demonstrated whether it is possible to provide fee estimates for smaller, less expensive groups of responsive records. 950 CMR 32.05(4) (custodians ofrecords are required to use their superior knowledge of the contents of their files to assist in promptly complying with the request). Hourly rate The hourly rate used in your estimate is $55.54, which is your hourly rate as Executive Director. In your January 5th response you explain that due to the confidential nature of many of the emails, no one else at the School has access to your emails, and you assert that you do not

Julia Bowen SPRl 7/128 Page 3 February 13, 2017 have any administrative staff. However, it is unclear why a lower-paid School employee cannot perform the task, for example, under the supervision the Executive Director. It is my understanding that you explained to an attorney on my staff that the School needs to be compensated for the time, because responding to public records request takes you away from your work as Executive Director of the School. Please be advised, responding to public records requests is part of the day-to-day functions of a government entity, and the fees assessed in responding are not a revenue stream. Nor should the fees serve as a deterrent for the requester to access public records. See Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,436 (1983). Order Accordingly, the School is hereby ordered to provide Mr. Mclsaac with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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, Rebecca S. Murray Supervisor of Records cc: Andrew Mclsaac