Paul Sullivan v. Norwood, Town of - Public Schools (SPR 20180706)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 29, 2018 SPRlS/706 Ann Marie Ellis Director of Finance and Operations Norwood Public Schools 275 Prospect Street, P.O. Box 67 Norwood, MA 02062 Dear Ms. Ellis: I have received the petition of Paul Sullivan appealing the response of the Norwood Public Schools (School) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sullivan sent a public records request email on April 17, 2018 to the School requesting the most recent outside independent audit of the student activity accounts performed. The School provided Mr. Sullivan with a response on May 7, 2018 of a good faith fee estimate for his public records request. Mr. Sullivan sent an email on May 14, 2018 to this office appealing the School's fee estimate stating he had made two separate public records requests for financial accounting documents which the School combined into one fee estimate. Mr. Sullivan is also requesting a fee waiver due to the School not responding to his request within ten business days. 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 black and white copies for both single and double-sided copies 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. 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

Ms. Ann Marie Ellis SPR18/706 Page2 May 29, 2018 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 C.M.R. 32.06(4). Appeal Mr. Sullivan claims that he made two separate records request with the School. It is unclear exactly which records Mr. Sullivan is requesting in his public records request to the School. G. L. c 66, § lO(a)(i) (the request must reasonably describe the public record sought). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 1O (b )(iii). Mr. Sullivan needs to provide the School a clarification of which document(s) he is requesting in order for the School to fulfill his public records request. i\ With regards to the fee estimate provided to Mr. Sullivan by the School on May it is not clear the reasons why it will take .5 hours to retrieve the records and what records will be retrieved in the search process. See G. L. c. 66, § lO(d)(iii). The School's May i 11 fee estimate total cost was $12.53. The School has not indicated the employee who will be segregating the records, or identified which exemptions allow for the redactions of records, or specified how the exemptions apply to the withheld records. See G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "). The School needs to provide Mr. Sullivan with a more detailed fee estimate in compliance with the Public Records Law. A records access officer (RAO) may not charge a fee unless the RAO provides a written response in 10 business days following the receipt of the request in compliance with G. L. c. 66, § lO(b). G. L. c. 66, § IO(e). An RAO may suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably. See G. L. c. 66, § lO(b)(vii). The School may not be permitted to charge fees associated with its May i 11 fee estimate if the School did not provide a response to this request in compliance with this provision of the law. See G. L. c. 66, § lO(e); see also 950 C.M.R. 32.06(2)(c). It is unclear whether the School complied with G. L. c. 66, § 10(e ) and 950 C.M.R 32.06(2)(c). Therefore, I find the School must demonstrate whether it responded to Mr. Sullivan's April 1i 11 request within ten business days following receipt of the request in compliance with G. L. c. 66, § IO(e) and 950 C.M.R 32.06(2)(c).

Ms. Ann Marie Ellis SPR18/706 Page 3 May 29, 2018 This office encourages the School and Mr. Sullivan to communicate further to enable the School to provide Mr. Sullivan with the public records he is seeking. Order Accordingly, the School is ordered to review the requests made by Mr. Sullivan and provide a written response to Mr. Sullivan, made in accordance with the Public Records Law, its Access Regulations and this order within ten business days. This administrative appeal is now closed. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Paul Sullivan