Paul Sullivan v. Walpole, Town of - Public Schools (SPR 20190585)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 3, 2019 SPR19/0585 Lincoln D. Lynch Town of Walpole -Public Schools 13 5 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." Previous appeal This request was the subject of a previous appeal. See SPRl 9/0388 Determination of the Supervisor of Records (March 4, 2019). I closed SPR19/0388 by ordering the School to provide Mr. Sullivan with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. The School provided another response on March 20, 2019. Unsatisfied with the School's response, Mr. Sullivan petitioned this office and this appeal, SPR19/0585, was opened as a result. 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 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 SPR19/0585 Page 2 April 3, 2019 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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, § 10(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). The School's March 20th fee estimate indicates that it is charging a total fee of $25.00 for three hours of time spent to comply with the request. The School explains that "searching and compiling the records [Mr. Sullivan] requested required 2.5 hours' work. The work was performed by [a] confidential administrative assistant and the District's Director of Technology/Digital Learning. Both employees' earn over $25/hour. The work involved multiple communications between the two employees. In addition, the Director of Technology/Digital Learning spent a large portion of the time searching for the records within the District's 'Google Vault,' where electronic copies of all employee e-mails are electronically stored. The search included use of 'aid4mail' software which assists in narrowing search results, removing duplicate hits, and converting the results back into Microsoft-compatible e-mails so that they can be transmitted. Another approximately 45-90 minutes of work on the part of [an] administrative assistant will be necessary to review the 50 pages of records in order to review them and as necessary redact any student names or identifiers that appear therein, pursuant to state and federal student confidentiality laws."

Lincoln D. Lynch SPR19/0585 Page 3 April 3, 2019 Although the School indicates it will "redact any student names or identifiers that appear therein, pursuant to state and federal confidentiality laws," the School does not specifically identify a law requiring redaction. As such, the School is not permitted to charge for redaction at this time. See G. L. c. 66, § lO(d)(iii); 950 CMR 32.06(4). Accordingly, the School is ordered to provide Mr. Sullivan with a revised written, good faith estimate for the cost of complying with his request consistent with the Public Records Law, its Regulations and this determination. Upon payment of the fee, you are ordered to provide the records in a timely manner. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Paul Sullivan