Robert Sullivan v. Middleborough, Town of - Public Schools (SPR 20170536)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 27, 2017 SPR17/536 Ann Gagnon Records Access Officer Middleborough Public Schools 30 Forest Street Middleborough, MA 02346 Dear Ms. Gagnon: I have received your petition on behalf of Middleborough Public Schools (School) requesting to charge for time spent segregating or redacting public records in responding to a request made by Robert Sullivan. G. L. c. 66, § lO(d)(iv). As required by law, the School provided a copy of this petition to the requester. G. L. c. 66, § 10(d)(iv)(2). Mr. Sullivan requested "all emails sent and received" by four ( 4) specifically identified School employees from April 15-25, 2016 and November 9-17, 2016. Mr. Sullivan noted that "[e]mails should include headers, recipients list, subject area, etc." In its petition dated April 20, 201 7, the School seeks permission to charge for time spent redacting and segregating responsive records. Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § lO(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § lO(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. 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

Ann Gagnon SPRl 7/536 Page 2 April 27, 2017 first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § lO(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10( d)(i). Municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d )(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d )(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 CMR 32.06(4). Current petition In its petition dated April 20, 2017, the School seeks permission to charge for time spent segregating and redacting records responsive to Mr. Sullivan's request. The School explains that there are approximately 3,300 emails and approximately 40,000 total pages. You indicate that the School would spend forty hours searching and reproducing these records. In subsequent correspondence dated April 26, 201 7 you explain the School would also "like to petition to charge this requester for the time it will take to segregate and redact these emails given the strong likelihood that they contain student record information with our attorney, which are privileged and confidential." You indicate certain information may also be exempt under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). The School estimates the "amount of time for redacting is 20 hours (at $25/hr)."

Ann Gagnon SPRl 7/536 Page 3 April 27, 2017 Given the nature of the requested records and the explanation in its petition as well as its subsequent correspondence, the School has met its burden to explain how the request could not prudently be completed without redaction or segregation under applicable statutes. See G. L. c. 66, § 10( d)(iv). Therefore, the School may assess a fee for the time spent to segregate and redact these requested records. However, I find that the School has not met its burden to explain why twenty hours of time is necessary to redact. For example, it is unclear how much time is required per email, nor is it clear what method the School will use when reviewing the responsive records. Conclusion Accordingly, the School is permitted to charge for time spent segregating and redacting the requested records. However, the School has not demonstrated the need for twenty hours to redact the records. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). When preparing a fee estimate for the provision of the requested records, the School must reduce the amount of time charged for redacting the records, or provide more detail explaining why this amount of time is necessary. The School must also explain why forty hours is necessary for "searching and reproducing." Despite the fact that the School provided the hourly rate, it did not explain why it is that of the lowest paid employee with the necessary skill. The School shall provide a response to Mr. Sullivan within five business days of receipt of this determination. See 950 CMR 32.06(4)(h)(4). Mr. Sullivan may appeal the School's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note the requester has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G.L. c. 66, § 1O A. Sincerely, Rebecca S. Murray Supervisor of Records cc: Robert Sullivan