Daniel O'Connor, Esq. v. King Philip Regional School District (SPR 20181571)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 6,201 8 SPR1811571 Lisa Barrett Witkus King Philip Regional School District 18 King Street Norfolk, MA 02056 Dear Ms. Witkus: I have received the petition of Daniel O'Connor, Esq. appealing the response of the King Philip Regional School District (District) to a request for public records. G. L. c. 66, 5 10A; see 950 C.M.R. 32.08(1). Specifically, Attorney O'Connor requested copies of text messages and emails related to an identified District employee. The District responded to his request by providing a fee estimate. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, 5 1O A(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, 5 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 41 9 Mass. 507, 5 11 (1 995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Lisa Barrett Witkus Page 2 November 6,201 8 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, 5 10(d). The fees must Id. reflect the actual cost of complying with a particular request. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a 5 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, 5 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 Id. per hour. 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, 5 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, 5 lO(d)(iv). See G. L. c. 66, 5 lO(d)(iii); 950 CMR 32.06(4). Conclusion While this appeal was pending, this office was notified that the District provided another response to Attorney O'Connor including a revised fee estimate dated November 6,201 8. Whereas this matter was opened based upon the District's October 23, 2018 fee estimate, I will now consider this administrative appeal closed. Attorney O'Connor may appeal the substantive nature of the District's November 6thr esponse within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray V Supervisor of Records cc: Daniel O'Connor, Esq.