Ronald Alexander v. Natick, Town of - Public Schools (SPR 20181563)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 11, 2018 SPR18/1563 Timothy Luff Assistant Superintendent Office of Student Services Natick Public Schools 13 East Central Street Natick, MA 01760 Dear Mr. Luff: I have received the petition of the Town ofNatick's Public Schools (School) request for Reconsideration of the response to Ronald Alexander's request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Alexander initially submitted a public records request to the Town on September 17, 2018 seeking various records, including case file documents, communications, and invoices, related to an identified court case. Previous appeal ih The September 1 request was the subject of a previous appeal See SPRl 8/1563 Determination of the Supervisor of Records (November 7, 2018). The Town provided a fee estimate of $1,380 which was sent to Mr. Alexander on September 20, 2018. After modified requests were provided to the Town, Mr. Alexander appealed the School's response to this office on October 24, 2018 stating the Town failed to provide a timely response and assessed an unlawful fee. In my November 7, 2018 determination, I found it was unclear whether the Town responded to Mr. Alexander's narrowed request. See G. L. c. 66, § lO(e); 950 C.M.R 32.06(2)( C) . Request for reconsideration As mentioned above, Mr. Alexander initially made a records request on September 17, 2018 in which the School provided a fee estimate on September 20, 2018. On September 20th Mr. Alexander narrowed the scope of his request based on the fee estimated provided by the School. This narrowed request sought "[t]he original complaint filed with the 'Massachusetts Court System' with the docket number. Alternatively, if you just send me the docket number I can obtain the case documents from the court myself." Mr. Alexander also sought "[a]ll legal 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

Mr. Timothy Luff SPR18/1563 Page2 December 11, 2018 invoices that contain line items related to the above "Case" and he notes that alternatively, he could obtain" ... all invoices for legal services from the date/time that the original complaint was filed (5 years ago?) to present." The School provided another fee estimate to Mr. Alexander on September 25, 2018 based on his narrowing of the request. The September 25th fee estimate also included a request by the School for a fee petition. The School seeks reconsideration of the November ih determination and references the September 25th petition. It was initially unclear that September 25th correspondence contained a fee petition. Fee estimates and petitions for ability to assess fees 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. 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 (Supervisor) under a petition under G. L. c. 66, § IO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). The 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, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10( 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. Id. You explained that the School has" ... counted more than 500 records that may be responsive to this request. To segregate and redact confidential information I estimate a minimum of 6 hours to segregate and redact highly confidential information that may exist therein." The School was seeking permission to charge $120 for 4 hours of time charged for segregation and redaction at an hourly rate of $30.00 per hour. You explain that the confidential information includes communications and case file documents containing information regarding students, members of the public, and/or personnel. The School states that the search" ... can only be completed by a high level town employee. The rate requested is based upon the current

Mr. Timothy Luff SPR18/1563 Page 3 December 11, 2018 rate of [the School's] Administrative Assistant who may assist me in the segregation and redaction of these documents after my review of each document." The School's Administrative Assistant hourly rate is $30 dollars per hour. I find the School has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d )(iv). Therefore, I find the School may assess a fee of $30 per hour for the time to search for responsive records. However, it is unclear why the School requires 6 hours to segregate and/or redact responsive records; in particular, it is not clear how responsive records, which are comprised of a complaint filed in court and legal invoices, contain "highly confidential information." This office encourages the School and Mr. Alexander to communicate further in order to provide public records in an efficient and affordable manner. See G. L. c. 66, § lO(b)(vii) (a municipality shall 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 municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, I find the School may assess fees at an hourly rate of $30.00 per hour to search for the records; however, it has not met its burden to assess a fee for 4 hours of time to segregate and/or redact. The School is advised it must provide a response in a manner consistent with this determination, the Public Records Law and its Access Regulations. Mr. Alexander may appeal the substantive nature of the School's response within ninety days. See 950 C.M.R. 32.08(1). Please note that Mr. Alexander has the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court. See G. L. c. 66, §§ lO(c), lOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ronald Alexander