John Cody v. Blue Hills Regional Technical School District (SPR 20192147)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor af Records

October 24, 2019 SPR19/2147

Kevin S. Freytag, Esq.

Murphy, Hesse, Toomey & Lehane, LLP 300 Crown Colony Drive, Suite 410 Quincy, MA 02169

Dear Attorney Freytag:

I have received your petition on behalf of the Blue Hills Regional Technical School District (District) seeking to charge in excess of the statutory fees in responding to a request made by John Cody of SMART Local 17. G. L. c. 66, § 10(c). As required by law, it is my understanding that the District furnished a copy of this petition to the requestor. Id. In a letter dated October 2, 2019, Mr. Cody requested, “all communications in regard to dampers not being required to be installed properly and only as Temporary Life Safety Protection, Please include all Notes and Emails. Include all Engineer reports, Building Inspector reports and inspections, Fire Marshall sign offs and compliance reports. All Purchase orders, T&M slips, and anything regarding the installation of fire life safety components. Please provide all Punch list reports, Commissioning reports, Balancing reports, Indoor air quality testing reports, all RFI's and SKM's, and the Mechanical Specifications for the project.”

Petitions to Assess Fees

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 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 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

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

Kevin S. Freytag, Esq. | ~ SPR19/2147 Page 2 October 24, 2019

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, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.MLR. 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).

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)(4).

Municipalities may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii), 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.

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 under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4).

Current Petition

In its petition to this office dated October 17, 2019, “[t]he School District hereby petitions the Division of Public Records that it be authorized to charge a fee to search for a portion of the records sought in the Request.” Specifically, the District seeks to charge for “all Punch list reports, Commissioning reports, Balancing reports, Indoor air quality testing reports, all RFI's and SKM's, and the Mechanical Specifications for the project.”

The District notes, “[t]he records sought by Local 17 are in the possession of the School District's general contractor for the Project - Consigli Construction, Inc.” With respect to the petition to charge $85.00 per hour in responding to the request the District states, “Consigli will charge the School District $85 per hours for its Project Engineer, Chris Kavanaugh to perform this search. Mr. Kavanaugh is the lowest paid Consigli employee who has the necessary skill required to search for the documents that are responsive to this portion of the Request. Furthermore, as Project Engineer for the Project he is uniquely qualified to conduct this search based on his overall knowledge of the project.”

Kevin S. Freytag, Esq. SPR19/2147 Page 3 October 24, 2019

Conclusion

Based on its petition, the District may charge fees in excess of $25 per hour for the provision of the requested records. However, this allowance is limited to the rate of $50.00 per hour. The District must provide a response and/or the records in compliance with this determination, the Public Records Law, and its Access Regulations.

This office encourages Mr. Cody and the District to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(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 agency to produce records sought more efficiently and affordably), Any updated fee estimate by the District must be in compliance with this determination, the Public Records Law, and its Access Regulations.

Please note, the requestor has the right to seek judicial review of this decision by * commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c).

Boron

Recon S. Murray ‘

_ Supervisor of Records

ce: John Cody Blue Hills Regional Technical School District