Frank Sivo v. Hopkinton, Town of - Public Schools (SPR 20171259)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 21, 2017 SPR17/1259 Dr. Carol Cavanaugh Assistant Superintendent Town of Hopkinton Public Schools 89 Hayden Rowe Street Hopkinton, MA 01748 Dear Dr. Cavanaugh: I have received the petition ofFrank Sivo appealing the response of Town ofHopkinton Public Schools (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sivo requested a number of records pertaining to "transfer students". and their emollment in various programs of study at HHS for the school year 2017-18. Initially, on September 1, 2017, the School provided a response, including a written fee estimate. Objecting to your September 1st fee estimate as "excessive and punitive," Mr. Sivo petitioned this office for an appeal. Responsive records and use of custodian's superior knowledge In reviewing Mr. Sivo's original request made to the School, it is unclear whether the School understood the content of his request. In an email dated September 51 h, Mr. Sivo requested records pertaining to, "[t]he total number of transfer students from other schools (not including foreign exchange)." However, the School's response stated Mr. Sivo's requested, "[T]he total number ofjoreign exchange students emolled ... "The School's response also indicated that the responsive records are related to "22 international students." In accordance with the Public Records Law, a custodian is expected to use his or her superior knowledge of the records in his or her custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.04(5). I find that the School should provide another response that will shed some light on whether the School has a record responsive to Mr. Sivo's specific .request, or whether the School is compiling data from different sources. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Public Records Division attorneys are available during regular business hours to answer general questions regarding 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

Dr. Carol Cavanaugh SPR17/1259 Page 2 September 21, 2017 Public Records Law. In addition, Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. Fees- Municipalities 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. I d. 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) 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, § 1 0(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). Further, 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, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 CMR 32.06(4). The School's estimate On September 1st, the School provided a response to Mr. Sivo along with a written fee estimate for the cost of searching, compiling and redacting the responsive records. The School estimates that 3 hours at $25.00 per hour for a total cost of $7 5. 00 is necessary to complete the tasks involved with this request. The School's response explains that the Town has a population ofless than "20,000 persons", therefore the School is "permitted to charge" for the full 3 hours of time. The School provided a link to a government census website to substantiate its population. I find that the School is not required to waive the first two (2) hours of time in complying with this public records request. G. L. c. 66, § 1 0( d)(iii). The School's estimate states that the $25.00 per hour rate will be used to assess the three (3) hours of time to comply with this public records request. Under the Public Records Law and its Regulations, the hourly rate should be based on the lowest paid employee who could perform these tasks. Although the School has stated that the employee who is capable of searching, compiling, and redacting the records is paid more than $25.00 per hour, the School did not specifically identify whose hourly rate that is, nor has the School indicated whether a lower-paid

Dr. Carol Cavanaugh SPR1711259 Page 3 September 21, 2017 employee could be used to conduct the search and compilation, versus the redaction of the records. The estimate merely states, "[t]he hourly rate of the lowest paid employee who could perform these services exceeds $25.00 per hour ... " I find that the estimate is unclear whether the lowest paid hourly was used for each of these tasks. The School is advised that under the provisions of the Public Records Law, no fee can be assessed for segregation of exempt content and redaction of that content, unless the redaction is required by law or with the permission of the Supervisor of Records. See G. L. c. 66, § 10(d)(iii); 950 CMR 32.06(4). It is uncertain what content the School believes must be redacted from the record requested, whereas a review of Mr. Sivo' s request reveals that he has asked for statistical data. Finally, from the Town's response it is unclear whether the School has any ofthe information requested in electronic format, which could reduce the amount of time necessary for conducting a search, and compiling the records, or whether the School could suggest a reasonable modification of the scope of the request, or offer to assist the requester to modify the scope, if doing so would enable the School to produce records sought more efficiently and affordably. See 950 C.M.R. 32.06(2)(g). It is my understanding that both a staff member and an attorney in the Public Records Division had telephone conversations with the School's Legal Counsel, Nancy Campany, regarding this request, and that a supplemental response will be provided regarding this public records request. Conclusion Accordingly, whereas the School will provide a supplemental response to Mr. Sivo regarding this request and its estimate, I will consider this appeal closed with the proviso that the response is provided within ten (1 0) business days in a manner consistent with this order, the Public Records Law and its Regulations. 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. Mr. Sivo may appeal the substantive nature of the supplemental response within ninety (90) calendar days. 950 C.M;R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Frank Sivo Nancy Campany, Esq.