Joe Difazio v. Cohasset, Town of - Public Schools (SPR 20191695)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 27, 2019 SPR19/1695 Patrick Sullivan Ed.D. Superintendent Cohasset Public Schools 143 Pond Street Cohasset, MA 02025 Dear Mr. Sullivan: I have received your petition on behalf of the Cohasset Public Schools (School) seeking an extension of time to produce records, and a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10( c ); G. L. c. 66, § 10( d)(iv); see also 950 C.M.R. 32.06(4 ). As required by law, the School furnished a copy of this petition to the requestor. G. L. c. 66, § IO(c). On August 5, 2019 and August 13, 2019 the School received two requests from Joe DiFazio: "[a]ny email communications and attachments between former Superintendent Louise Demas and former principal Carolyn Connolly from Feb .. 12 until Sept. 24, 2018"; and"[a ]ny electronic or paper communications and attachments to or from Cohasset adjustment counselor Catherine (Cate) Nelligan sent between Feb. 12 2018 until Aug. 13, 2019 regarding being put on administrative leave ... " Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; 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

Patrick Sullivan SPR19/1695 Page 2 August 27, 2019 (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § lO(c). In its August 19, 2019 petition, the School requests "[a ]n extension of an additional thirty (30) business days for the district to furnish the non-exempt records or portions thereof." The ·school indicates "the magnitude and difficulty of these requests, coupled with the receipt of multiple requests from the same requestor's organization, Gatehouse Media, since January 2019 ... unduly burdens the other responsibilities of the Cohasset Public Schools." The School explains "[i]t would be unduly burdensome and detrimental to its educational mission for the district to respond to these extensive and multiple requests within the timelines provided in MGL Chapter 66, Section 10.'' Fmiher, the School explains they "will need to expend additional significant hours in response to the most recent requests ... the request will require us to review in excess of 900 pages." The School indicates "[t]he scope of necessary redactions necessary to protect legally enforceable confidentiality protections for student and personnel records and other private information is expected to be significant.'' I find that in light of the capacity and normal business hours of the School, efforts undertaken by the School in fulfilling the current request and previous requests, and the need to. redact the requested records, the School has established good cause to permit an extension of time to produce records. See G. L. c. 66 § 10( c )(i)-(iv). However, it is unclear whether the School seeks 30 additional business days to respond to both the August 5th and August 13th requests. Further, it is uncertain whether the School seeks 30 business days beyond the 25 business days allowed for in G. L. c. 66 § lO(b)(vi) to produce records. Petitions for ability to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § lO(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § lO(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve

Patrick Sullivan SPRl 9/1695 Page 3 August 27, 2019 a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10( d)(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10( d). The fees must reflect the actual cost of complying with a paiiicular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 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, § 10( d)(iii). Where appropriate, municipalities may include as paii 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4 )(g). In its August 19, 2019 petition, the School requests "[a]pproval to charge for all time spent segregating and redacting records, and approval to charge a rate in excess of $25. 00 per hour for ce1iain hours for search, compilation, segregation, redaction and reproduction of requested records." The School estimates "the time necessary to search for, compile, segregate, redact or reproduce the requested records ... is in excess of 25 hours (4 hours to retrieve and transmit email records and 19 hours of document retrieval, review, segregation and redaction time)." The School explains the four hours for retrieval and compilation were assessed "[b] ecause the vast majority of requested records are emails and are thus password protected, the lowest paid person capable of retrieving the vast majority of records is the IT Director, whose

Patrick Sullivan SPR19/1695 Page 4 August 27, 2019 rate of pay is $54.24. He has indicated that he has already spent two (2) hours performing initial keyword searches ... and will likely need to spend an additional 23 hours retrieving the records and transmitting them to the school district for review and redaction." The School asserts that although "the vast majority of segregation and redacting will be required by law ... we seek approval to charge for all redactions. For example, individuals who voluntarily cooperated in investigations have a reasonable expectation that their identities will not be made public." The School further explains "in addition to the approximately 15 hours of clerical work that can be charged at the statutory rates ... we anticipate that approximately three (3) hours of the Superintendent's time will be necessary to supervise and review the clerical work." In addition, the School explains "[i]t is estimated the legal counsel, which charges $250.00 per hour, will need to devote at least three (3) hours providing assistance to the Superintendent of Schools." The School indicates "[t]he staff time needed to respond to this request is simply not in our budget" and the School "would likely be forced to eliminate or delay performance of essential tasks, and make line item transfers away from imp01iant educational priorities, to comply with this request if it were not permitted ... to charge an adjusted hourly rate." Fmiher, the School notes "Gatehouse Media charges subscription fees" and "has the ability to pass along increased costs of doing business by raising prices. The disfrict does not have this capacity." I find the School has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10( d)(iv). To the extent the responsive records contain the exempt information as described above, the School may assess a charge for the segregation and redaction of such exempt material. However, the School must provide more information regarding the applicability of the exemptions when preparing their fee estimate. G. L. c. 66, § lO(d)(iv). Further, I find the School has met its burden to assess the hourly rate of the IT Director, at $54.24 per hour. However, the School has not met its burden assess an hourly a rate in excess of $25.00 per hour for the Superintendent and legal counsel's time; specifically, the Superintendent's rate was not specified and it is unclear why both the Superintendent and legal · counsel are required to spend time responding to these requests. Conclusion For the reasons discussed above, the School is granted an extension of time to produce responsive records; however, the School must clarify the issues described above. The School is also permitted to charge for time spent segregating and redacting the requested records, to the extent the responsive records contain the exempt information. The School's petition to assess an hourly a rate in excess of $25.00 per hour is granted in the manner described above. When preparing a fee estimate for the provision of the requested records the School is advised to provide a detailed explanation to the requestor detailing why this amount of time is

Patrick Sullivan SPR19/1695 Page 5 August 27, 2019 necessary. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). The School must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The School must provide a response to Mr. DiFazio within five business days ofreceipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. DiFazio may appeal the School's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior comi. See G. L. c. 66, § 1O A( c ). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Joe DiFazio