Chrissy Ryan v. Amherst-Pelham Regional School Districts (SPR 20192177)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 5, 2019 SPR19/2177 Debbie Westmoreland Director of Communications and Operations Amherst-Pelham Regional Public Schools 170 Chestnut Street Amherst, MA O1 002 Dear Ms. Westmoreland: I have received the petition of Chrissy Ryan appealing the response of the Amherst Pelham Regional School District (District) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Ryan requested "[a] printout under 'Your Orders' for the last 3 years of all Amazon.com accounts for ARPS and Amherst employees (including business office, SSO, Special Education, Athletic Director, Superintendent)." The District responded to Ms. Ryan with a fee estimate on September 16, 2019, stating that it does not possess the Amazon printouts requested by Ms. Ryan, and offering to provide purchase orders for the requested time period. The District provided a fee estimate for the time to produce the purchase orders, estimating that it would take 30 hours, for a cost of $700. Unsatisfied with this response Ms. Ryan petitioned this office and this appeal, SPR 19/2177, was opened as a result. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). In its September 16th response, the District states that "[t]he Amazon printout requested in your public records request of 9/9/19 is not an existing public record." In a telephone conversation with a staff member of the Public Records Division, the District confirmed that it does not possess printouts ·in the manner requested by Ms. Ryan. The District is not required to 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

Ms. Debbie Westmoreland SPR19/2177 Page 2 November 5, 2019 create a record in response to a request. See id. Fee Estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 fewer. 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 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 under a petition under G. L. c. 66, § lO(d)(iv). G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). The District's Fee Estimate In its September 20111 response, the District stated "[t]he time estimated to copy and prepare all amazon purchase orders is 30 hours based on approximately 200 amazon P.O.s per year for three years at three minutes per record." The Public Records Law provides that in cases where necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a requested record based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § lO(d); see also 950 C.M.R. 32.07(2). The reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. The District may permissibly charge for time spent searching for and reproducing the requested records. However, while the District may charge for time spent searching for the records, it is unclear how it reached the estimate of 30 hours for the work. It is additionally unclear to which tasks the District refers when it estimates time to "prepare" the purchase orders. The District must clarify these matters.

Ms. Debbie Westmoreland SPR19/2177 Page 3 November 5, 2019 Employee time 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. In its fee estimate, the District does not identify the employee(s) who will complete the request, nor the rate at which those employees are paid. Therefore, it is unclear whether the District calculated its estimate using the hourly rate of the lowest-paid employee capable of performing the work. See 950 C.M.R. 32.07(2)(i). The District must clarify this matter. Conclusion Accordingly, the District is ordered to provide Ms. Ryan a response in a manner consistent with this order, the Public Records Law, and its Regulations within ten (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. Fmiher, the District notes in its September 16th response that "you may reduce the cost by revising your request." This office encourages Ms. Ryan and the District to continue to communicate to facilitate providing records 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 the records sought more efficiently and affordably). Sincerely, ~r~ Supervisor of Records cc: Chrissy Ryan