Joe Difazio v. Cohasset, Town of - Town Clerk (SPR 20191808)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 19, 2019 . SPR19/1808 Patrick E. Sullivan, Ed.D. Superintendent of Schools Cohasset Public Schools 143 Pond Street Cohasset, MA 02025 Dear Superintendent Sullivan: I have received the petition of Joseph DiFazio of The Patriot Ledger appealing the response of the Cohasset Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on August 5, 2019 Mr. DiFazio requested "[a]ny email communications and attachments between former Superintendent Louise Demas and former principal Carolyn Connolly from Feb.12 until Sept. 24, 2018." On August 13, 2019 Mr. DiFazio requested "[a]ny electronic or paper communications and attachments to or from Cohasset adjustment counselor Catherine (Cate) Nelligan sent between Feb. 122018 until Aug. 13, 2019 regarding being put on administrative leave, sexual assault allegations at the school, Jeffrey Knight in any capacity or 51 A compliance." Previous determination These requests were the subject of a previous determination. See SPRl 9/1695 Dete1mination of the Supervisor of Records (August 27, 2019). In my August 27th detennination I granted an extension of time to produce responsive records but found the School must clarify certain issues. I also found the School is pennitted to charge for time spent segregating and redacting the requested records, to the extent the responsive records contain the exempt info1mation. I further found the School met its burden to assess the hourly rate of the IT Director, at $54.24 per hour. However, the School did not meet its burden to assess an hourly a rate in excess of $25.00 per hour for the Superintendent and legal counsel's time. I also noted that when preparing a fee estimate for the provision of the requested records, the School must provide a . detailed explanation to the requestor detailing why the amount of time is necessary. 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 E. Sullivan, Ed.D. SPR19/1808 Page 2 September 19, 2018 The School provided Mr. DiFazio a response on August 28, 2019. Mr. DiFazio appealed and SPRl 9/1808 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, § 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, § 10(d )(i). 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 In its August 28th response the School indicates "[w ]e estimate that the combined time involved in searching for, segregating and redacting the requested records in response to both requests will total approximately twenty-five (25) hours." The School estimates that" ... four (4) of those twenty-five (25) hours will be needed to search for and retrieve responsive records." You note that "[t]he lowest paid individual capable of performing this task is the Town's Deputy Infonnation Officer, whose hourly rate is $54.24." The Town further estimates that 21 of the 25 hours will be needed to segregate and redact responsive records at an hourly rate of $25.00 per hour. You indicate that "[b]ased on the nature and scope of your request, we anticipate that much of the information within the scope of your request is likely to consist of student record information and personnel information. We further anticipate that there may also be a need for redactions of identification of voluntary witnesses to investigations, or personal information that would likely create an invasion of privacy if released." The Town also provides a breakdown of the estimated amount of time to respond to both the August 5th and the August 13th requests. In his appeal petition Mr. DiFazio asserts "I'd like to appeal these fees and again kindly request the town of Cohasset waive any fees to my public records requests." He indicates that he

Patrick E. Sullivan, Ed.D. SPR19/1808 Page 3 September 19, 2018 asked the Town certain questions and notes, in part, "I'd be happy to cancel my records request if furnished with answers to those questions." Mr. DiFazio also provides information in support of his position that the Town should waive fees associated with this request. Fee waivers G. L. c. 66, § lO(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. In light of this provision, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § lO(d)(v); see also 950 C.M.R. 32.07(2)(k). Based on its previous fee petition as well as its August 28111 response, it appears the School has elected not to waive the fee in this matter. Notwithstanding this position, the School's fee estimate must be in compliance with the Public Records Law and its Regulations. Reasonableness of the fee estimate Although the School estimates it will take 25 hours to produce records, it is unclear why this amount of time is necessary. In particular, the School has not described why it needs 4 hours to search for and retrieve the records, nor has it explained how many minutes per document and/or page it will need to segregate and redact the responsive records. I find the School must clarify these matters. See G. L. c. 66, § 10(d ) (a fee for the production of a public record must be reasonable). The paiiies 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). Conclusion Accordingly; the School is ordered to provide Mr. DiFazio with a response to the request,

Patrick E. Sullivan, Ed.D. SPR19/1808 Page4 September 19, 2018 provided 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: Joseph DiFazio