Rick Paris v. Mount Greylock Regional School District (SPR 20191356)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111/sor ofR ecords July 22, 2019 SPR19/1356 Jonathan Nopper Records Access Officer Mount Greylock Regional School District Office of the Superintendent 1781 Cold Springs Road Williamstown, MA O1 267 Dear Mr. Nopper: I have received the petition of Rick Paris appealing the response of the Mount Greylock Regional School District (District) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Paris requested "all phone conversations, emails, and text messages between Superintendent Kim Grady and School Committee member Regina DiLego regarding [Mr. Paris] and/or Lanesborough Elementary School between the dates of December 2017 and March 13, 2019." Prior appeals The requested records were the subject of prior appeals. See SPRl 9/833 Determination of the Supervisor of Records (May 7, 2019); SPRl 9/103 8 Determination of the Supervisor of Records (June 4, 2019). In my June 4th determination I ordered the District to provide Mr. Paris with a revised estimate for the request, in a manner consistent with the order, the Public Records Law and its Regulations. The District responded on June 18, 2019 by providing another explanation of the fee estimate. Mr. Paris continues to object to this fee and SPR19/1356 was opened as a result. 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, § lO(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). 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

Jonathan Nopper SPR19/1356 Page 2 July 22, 2019 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, § lO(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, § 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Current appeal The District previously provided fee estimates that explained it intends to assess a fee of $150 to produce records. In my June 4th determination I found the District had not explained why the estimated time is necessary to produce the records and indicated it must explain the estimate to show the numbers of hours of time assessed for each of the necessary tasks. I also found it was unclear whether the District was assessing a fee for segregation and/or redaction of the records. In its June 18th response the District indicates that it waived the first two hours of time from the 8 hour estimate because the District has a population over 20,000. Therefore, the number of hours assessed by the District is 6 hours at $25 per hour for a total of $150. The District also explains that no fees have been assessed for copies, because the records will be provided electronically to Mr. Paris' email address. The District also indicates "[p] lease note, confidential communications between public officers and employees and governmental entities and their legal counsel, unde1iaken for the purpose of obtaining legal advice or assistance, are protected under the normal rules of the attorney-client privilege, and the provisions of the public records law, G. L. c. 66, s. 10, and G. L. c. 4, s. 7, Twenty-sixth, did not extinguish the protection provided by the attorney-client privilege to records made or kept by public officers or employees and governmental entities subject to that law. Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444 (2007)." With respect to the amount of time needed to produce the records, you explain "[a] preliminary search resulted in 93 7 emails that need to be examined. This estimate takes into account the time it will take the Superintendent to search for and collect emails relevant to this request as well as to prepare them for reproduction into a singular PDF in order to be sent to the requestor electronically via the email address provided []." You further note that "[i]t is not anticipated that any records subject to this request would need to be segregated or redacted, therefore, no time has been included within this estimate for that purpose. However, it is the District's procedure to have all public records requests reviewed by school counsel prior to final

Jonathan Nopper SPR19/1356 Page 3 July 22, 2019 release and any advisement by school counsel to segregate or redact any portion of records subject to this request will be accompanied with a letter of explanation citing the law under which that action was taken at the time of release." Although the District refers to the attorney-client privilege in its response, it appears the District does not intend to assess a fee for time spent segregating and/or redacting records. However, it remains unclear why the District requires 8 hours to produce responsive records; specifically, the District has not established how much time per email is needed for review, nor has it explained how it may charge for the time spent preparing the records " ... for reproduction into a singular PDF in order to be sent to the requestor electronically ...." Therefore, I find that the District must clarify these matters. The parties are encouraged to communicate further to determine whether any responsive records may be provided more efficiently and affordably. 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). Order Accordingly, the District is ordered to provide Mr. Paris with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 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: Rick Paris