Paul Sullivan v. Needham, Town of - Public Schools (SPR 20182063)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 4, 2019 SPRlS/2063 Dan Gutekanst Superintendent of Schools Needham Public Schools 13 3 0 Highland A venue Needham, MA 02492 Dear Mr. Gutekanst: I have received the petition of Paul Sullivan appealing the response of the Needham Public Schools (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on November 24, 2018, Mr. Sullivan requested copies of email · communciations between certain named individuals for the time period of "April 1st 2018 through November 24th 2018." The School responded to Mr. Sullivan's request on December 2, 2018 with a fee estimate. Mr. Sullivan is appealing the School's December 2nd fee estimate. 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, § IO(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, § IO(d)(iv). 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

Dan Gutekanst SPR18/2063 Page 2 January 4, 2019 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). Current Appeal In his appeal petition, Mr. Sullivan indicates he is objecting to the fee estimates for three reasons: "1 Needham Ma has a population over 20,000 and therefore must provide the first 2 hours or review etc of request free of charge. The cost I was provided indicates I was to be charged for these 2 hours of time. 2 The response indicates a rate of $34.00 for review of the documents requested, Needham must receive permission from the Supervisor of records to charge in excess of $25.00 per hour. No evidence or permission for the charge in excess of the allowable $25.00 per hour was provided nor was any permission confirmation from the Supervisor of records provided. 3 No evidence of why the review of these electronic documents would take 4-5 hours was provided." The School's December 2nd fee estimate indicates "there are in excess of 1,500 emails that match your request." The School further explains an administrative clerk in the office will be assigned "to review each email and make appropriate redactions (e.g., student records). The Clerk's time is $34.00 per hour, and I estimate it will take her approximately four to five hours to complete this work for a total of $136 (four hours)." The Supervisor is unaware of any petition submitted by the School for permission to charge in excess of $25.00 an hour. G. L. c. 66, § lO(d)(iv) (municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records). Therefore, I find the School has not met its burden to charge $34.00 an hour to comply with the request at issue in this appeal. With respect to the amount of time needed to comply with the request, it is unclear why four to five hours are needed for redaction. The School has not specified how the exemptions apply to require redaction of the records. See G. L. c. 66, § lO(d)(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 ... "). Further, it is not clear if the School is charging for the first two hours in its December 2nd fee estimate. G. L. c. 66, § 10( d)(iii)(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).

Dan Gutekanst SPR18/2063 Page 3 January 4, 2019 Order Accordingly, the School is ordered to provide Mr. Sullivan with a revised fee estimate in a manner consistent with this order, the Public Records Law and its Regulations 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. Sincerely, ·~~ Rebecca S. Murray Supervisor of Records cc: Paul Sullivan