Andrew McIsaac v. Berkshire Arts and Technology Charter Public School (SPR 20170215)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 24, 2017 SPR17/215 Julia Bowen Executive Director Berkshire Arts and Technology Charter School One Commercial Street, P.O. Box 267 Adams, MA O1 220 Dear Ms. Bowen: I have received the petition of Andrew Mclsaac appealing the February 21, 2017 response of the Berkshire Arts and Technology Charter School (School) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Mclsaac requested a copy of all email messages created by Julia Bowen from November 1 through November 30, 2016. Prior appeals The requested records were the subject of three prior appeals. See SPR16/1236, SPRl 7/030 and SPRl 7/128 Supervisor of Records Determinations (December 30, 2016; January 17, 2017 and February 13, 2017). In my February 13th decision, I found that the School had not met its statutory and regulatory obligation of fully explaining 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 another written response within ten (10) days to clarify the amount of time allocated to search time versus segregation time, the amount of minutes per email, and to demonstrate whether it is possible to provide fee estimates for smaller, less expensive groups of responsive records. I also ordered the School to explain why, with your supervision as Executive Director, a lower-paid School employee cannot perform the task. On February 21st, the School provided the response within ten (10) days of my February 13th administrative order. Mr. Mclsaac appealed, and the current appeal was opened. The basis for Mr. Mclsaac's newest appeal is that the School is not using the lowest-paid hourly rate to assess the fees. 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 7/215 Page 2 February 24, 2017 I note that the request for the responsive records was made prior to the new provisions of the Public Records Law that went into effect on January 1, 2017. Therefore, the prior Public Records Law's provisions and regulations with respect to fees apply to this request and appeal. Fee Estimate - Hourly Rate If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(a) (2016 ed.); see also 950 C.M.R. 32.06(2) (2016 ed.) (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. 11 The School's February 21st letter clarifies the School's January 2i written, good faith estimate. The total estimate of $1,642.87 is based on "search time" to find and copy eight hundred fourteen (814) emails at ten ( 10) seconds per email, and "segregation time" to review and remove exempt material from the content of the emails, 2.2 minutes per email. The School still continues to use the hourly rate of the Executive Director, $55.54 per hour, to calculate the entire estimate, even though the School could utilize a lower hourly rate. Hourly rate Your hourly rate of $55.43 per hour is again the basis of Mr. Mclsaac's appeal. The Public Records Law Access Regulations allow the assessment of an hourly rate that is of the lowest paid individual who is capable of performing a task. The School has the obligation of demonstrating why a lower paid individual is not capable of "searching" for records or "segregating/redacting" exempt material. In your letter, you continue to state that due to the confidential nature of your emails a lower paid employee would not be able to search or segregate your emails. You also believe that having a lower paid employee segregate the materials under your supervision would actually be more costly to BART, because it would mean that two people would have to work on this task rather than just one. I find that your explanation still does not support the School's use of a $55.54 per hour rate for search and segregation. The School's decision to bar any other employee from access to your emails does not negate the fact that the tasks are capable of being performed by a lower-paid employee. Nor has the School proved that giving direction to or minimally supervising a lower-paid employee in the task of segregating the exempt material would be more costly to the School. As this office previously explained, responding to public records requests is part of the day-to-day business of a public entity, and all the employees of the School are already being paid to conduct the School's business, including responding to public records requests. Recouping costs under the Public Records Law is not a revenue stream to support the School's payroll or administrative costs.

Julia Bowen SPR17/215 Page 3 February 24, 2017 I find that if the School insists that the Executive Director will be the person charged with searching for and segregating the Executive Director's emails to comply with this request, than it may do so, however, Mr. Mclsaac may only be assessed the cost at the hourly rate of the lowest paid administrative employee capable of performing the task. The School must provide Mr. Mclsaac with a revised estimate for 29.58 hours at the hourly rate of the lowest-paid administrative employee capable of performing the task. Please note, if this request was made after January 1, 2017, the School would not be statutorily permitted to assess a fee at an hourly rate of more than $25 an hour without receiving prior approval from the Supervisor of Records. G. L. c. 66, § lO(d)(iii). Order Accordingly, whereas I find that the School did not meet its burden of supporting an hourly rate of $55.54 for 29.58 hours of combined search and segregation time, the School is hereby ordered to revise its hourly rate to that of the lowest-paid administrative employee capable of performing the task and provide the revised estimate consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of the 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 Mclsaac