George P. King, Jr. v. Nashoba Regional School District (SPR 20171594)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 28, 2017 SPR17/1594 Michael Macaro, Esq. Murphy, Hesse, Toomey & Lehane, P. C. 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Macaro: I have received the petition of George P. King, Jr. appealing the response of the Nashoba Regional School District (School District) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. King requested 14 categories of records from the School District. Mr. King paid for and has received records responsive to his Requests Numbered 1, 2, 3, 5 and 8. Prior appeals and determinations The requested records were the subject of three prior appeals and determinations of the Supervisor of Records (Supervisor). See SPRl 7/787; SPRl 7/1005 and SPRl 7/1294 Determinations of the Supervisor (June 21, 2017; August 7, 2017 and September 28, 2017). In my September 28th determination, I found that the School District is not required to waive the fees applicable to the request. However, I also found that the School District did not provide enough clarity to support the number of hours to complete Mr. King's request, and informed the School District to provide another response to support its estimated hours for this public records request. The School District provided a response dated October 11, 2017. Mr. King appealed this response and SPRl 7 /1594 was opened as a result. 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, § IO(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). 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

Michael Macaro, Esq. SPRl 7/1594 Page2 November 28, 2017 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, § 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). The School District's fee estimate In its September 6, 201 7 response, the School District indicates it "anticipates that the bulk of the time estimated (approximately 36 hours for all email and text requests) will be for this search and segregation process, with nominal time to be spent by Superintendent Clenchy and/or myself to review the records for potential redactions of student record information." The School District uses hourly rates of $25.00. The School District performed a test search to help determine the associated costs and notes that "[i]t is unknown the total number of documents that might be responsive to your request from all of the email accounts, because only this test search was run." The School District explains that this test "required 8 hours of staff time to conduct the search and compile the emails for future electronic production solely for one of the requested public officials." In its October 11th response, the School District states "there is no additional detail available." The response further states the School District "reserves the ability to adjust the estimate if the search and segregation time differs from its estimate, but it simply cannot provide any more information than it already has provided." Although the School District indicates the estimated time will be dedicated to the "search and segregation process," I find it remains unclear exactly how much time is being assessed for search time and how much is being assessed for redaction time. The School District also has not met its burden to explain the extent to which responsive records may be redacted as required by law, therefore, making it unclear how much time is needed to redact each responsive record. Conclusion Accordingly, whereas the School District did not provide the requisite support to justify 1 its fee estimate to charge for search, segregation and redaction as required in my September 28h order, the School District is ordered to provide Mr. King with a supplemental response to the request, in a manner consistent with this order, the Public Records Law and its Regulations

Michael Macaro, Esq. SPRl 7/1594 Page 3 November 28, 2017 within ten 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. Failure to do so may result in referral of this matter to the Office of the Attorney General (AGO). See G. L. c. 66, § lOA(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: George P. King, Jr.