Paul Sullivan v. Walpole, Town of - Public Schools (SPR 20190388)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 4, 2019 SPR19/0388 Lincoln D. Lynch Town of Walpole -Public Schools 135 School Street Walpole, MA 02081 Dear Mr. Lynch: I have received the petition of Paul Sullivan appealing the response of the Town of Walpole -Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sullivan requested "all email communications between the following people ... for the time period of 1-1-18 through 1-22-19." The School 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, § lOA(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, § 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, § lO(b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (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, § 1 O(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

Lincoln D. Lynch SPR19/0388 Page2 March 4, 2019 Fee estimate 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 a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(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, § 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. 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). 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 CMR 32.06(4). The School's estimate indicates that "searching, redacting, compiling, and segregating the records will take approximately four hours and cost approximately $50." The School explains that they are using $25 as its hourly rate, "which is lower than the lowest hourly rate of the employee capable of performing the work." The School explains that the "estimate is based on four hours of time to search and compile the materials." The School additionally indicates it is charging five cents a page for 50 pages, charging a total fee of $52.50. Based on the School's response, it is unclear if the School's fee reflects time spent "searching, redacting, compiling, and segregating the records," or time spent "to search and compile the materials." Further, the School has not provided enough information to explain why four hours is necessary to comply with Mr. Sullivan's request. Additionally, whereas the requestor indicates in his petition for appeal that he is not seeking hard copies of the records and did not request hard copies in his original request, it is unclear why the School is charging a five cent fee per page. Accordingly, I find the School must provide another response explaining how its fee estimate is in compliance with the Public Records Law or provide a revised fee estimate. Order Accordingly, the School is ordered to provide Mr. Sullivan with a response to the request, provided 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.

Lincoln D. Lynch SPR19/0388 Page 3 March 4, 2019 Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Paul Sullivan