Timothy R. McGuire v. New Bedford, City of - Public Schools (SPR 20181356)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 24, 2018 SPRlS/1356 Ms. Heather Emsley Executive Director of Human Capital Services City of New Bedford- Public School District 455 County Street, Room 101 New Bedford, MA 02740 Dear Ms. Emsley: I have received the petition of Timothy McGuire appealing the response of the City of New Bedford Public School District (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. McGuire appealed the School's fee estimate which was sent to him on August 7, 2018 concerning an "hourly rate of $39.80 for time spent segregating and redacting the documents. Mr. McGuire appealed the response to this office. Fee estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2)(b) (a records access officer (RAO) shall provide written, itemized, good faith estimate). Once fees are paid, an RAO must provide the responsive records. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for 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, § lO(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 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. Heather Emsley SPR18/1356 Page 2 September 24, 2018 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). An 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, § 1O (b ). G. L. c. 66, § lO(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, § 1 O(b )(vii). Appeal It is not clear what documents will be produced to Mr. McGuire and how the documents pertain to his public records request. The School's fee estimate must provide clarity on how many pages will be produced, the reasons for redaction of documents, if any, and any other associated fees. See G. L. c. 66, § lO(d)(i) (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). While municipalities may include 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, the fee shall not be more than $25 per hour. See G. L. c. 66, § 10(d )(iii), (iv). Further, a municipality may not charge for the time to segregate or redact records uncles the 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). The School has not demonstrated that segregation and redaction of the records are required by law or that the School has been approved to charge more than $25 an hour to respond to this request. Please be aware, the School may not be permitted to charge fees associated with the records request if the School did not provide a response to this request in compliance with the provisions of the Public Records Law. See G. L. c. 66, § lO(e); see also 950 C.M.R. 32.06(2)(c). It is uncertain whether the School complied with G. L. c. 66, § lO(e) and 950 C.M.R 32.06(2)(c). Therefore, I find the School must demonstrate whether it responded to the records request and provided a fee estimate within ten business days following receipt of the request in compliance with G. L. c. 66, § lO(e) and 950 C.M.R 32.06(2)(c). Order Accordingly, the School is ordered to provide Mr. McGuire with a fee estimate in a manner consistent with this order, the Public Records Law and its Regulations within 10 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.

Ms. Heather Emsley SPR18/1356 Page 3 September 24, 2018 Sincerely, ~y~ Supervisor of Records cc: Timothy McGuire