Ronald Alexander v. Wellesley, Town of - Public Schools (SPR 20170751)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 8, 2017 SPR17/751 Judith M. Belliveau Assistant Superintendent, Finance and Operations Wellesley Public Schools 40 Kingsbury Street Wellesley, MA 02481 Dear Ms. Belliveau: I have received your petition on behalf of the Wellesley Public Schools (School) requesting permission to charge for time spent segregating and redacting public records. G. L. c. 66, § IO(d)(iv). On May 11, 2017 Ronald Alexander requested "raw responses" to an athletic survey distributed in June of 2016 and sent a revised request on May 26, 2017 narrowing the scope of his request to "the open-ended responses to the survey." 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, § IO(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 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 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

Judith M. Belliveau SPR17/751 Page2 June 8, 2017 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(d)(i). Municipalities may not assess a fee for the first 2 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, § lO(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 The School is seeking permission to "charge a fee in the amount of $126.26 for the segregation and redaction of documents related to the public records request." The School requests to be able to "charge for the first two hours of time spent redacting such records" at "an hourly rate of $33.67 per hour for the time spent redacting the responsive records." The School indicates "there are 45 pages of open-ended comments" responsive to the request and estimates "it will take significantly longer than five minutes to redact each page." However, the School is "willing to abide by its original estimate," which is 5 minutes per page as discussed in its May 24th fee estimate. The total time estimated to provide the records is 3.75 hours.

Judith M. Belliveau SPRl 7/751 Page 3 June 8, 2017 In support of its attempt to charge for the first two hours, the School indicates it "had previously provided Mr. Alexander with a fee estimate for records and he had declined to pay it." They also state "such fees are reasonable given the large amount of time the Department has spent responding to his numerous public records requests." Please note that a fee shall not be assessed for the first two hours of work performed where the responding municipality has a population of over 20,000 people. See G.L. c. 66, § 10(d )(iii). Therefore, I decline to grant the Town permission to charge for the first two hours of time spent segregating and redacting responsive records. In support of its request to charge an hourly rate over $25 an hour, the School provides information about the nature of the responsive records. In particular, in the School's May 24, 2017 response to Mr. Alexander you indicate that "portions of the requested re~ords constitute a work evaluation for specifically identifiable employees and that this information would be useful in making employment decisions." You further assert "[b]ased on the nature of the comments, the Department or the Committee could use this information in the future when making employment decisions." Therefore, you state it is "highly likely that portions of the open-ended responses fall within Exemption (c ) to the Public Records Law." You explain you are the "lowest paid employee authorized to review the document" and Town Counsel to be "intimately involved in the redactions." You assert that your hourly rate is $72.21 an hour and Town Counsel's hourly rate is $160.00 an hour. The School is seeking to charge the hourly rate of an administrative assistant to the Assistant Superintendent, at the rate of $33.67 per hour. I find the Town has met its burden to explai~ how, given the nature of the responsive records, the request could not prudently be completed without redaction, segregation or fee in excess of $25 per hour. See G. L. c. 66, § 10(d )(iv). Therefore, I find the Town's use of an hourly rate of $33.67 to be reasonable. The Town has also demonstrated that the fees are not being levied to limit, deter, or prevent access to records, nor are the fees a result of charging the requestor a premium due to poor records management practices by the Town. Conclusion For the reasons discussed above, the Town may not charge for the first two hours of time spent segregating and redacting responsive records. See G.L. c. 66, §§ lO(d)(iii). However, I approve the Town's petition to charge in excess of $25 an hour for time spent segregating and redacting the requested records. The Town is limited to charging the rate of $33.67 an hour. 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, § § 10(d )(iv)( 4 ); lOA(c).

Judith M. Belliveau SPRl 7/751 Page 4 June 8, 2017 Sincerely, ~~- Rebecca S. Murray Supervisor of Records cc: Ronald Alexander