Jeanne Holmes-Kireilis v. Brockton, City of - Law Department (SPR 20202095)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 10, 2020 SPR20/2095 Megan Bridges, Esq. City of Brockton 45 School Street Brockton, MA 02301 Dear Attorney Bridges: I have received the petition of Jeanne Holmes-Kireilis appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 17, 2020, Ms. Holmes-Kireilis requested: an opportunity to inspect and/or obtain a copy of any and all records relating to school transportation for FY21, including but not limited to communications, either electronic or hard copy, account data, and any other records pertaining to funding for school transportation beginning in August 2020 to the present using Brockton Public School buses and/or buses paid for or on behalf of Brockton through Brockton funds. Additionally, I request any and all records of bus trips, including travel locations to and from, the number of daily trips, the reason for the trips, the number of students serviced for each trip and all other trip information. Further, I request any and all records of the funding for the school transportation, including but not limited to the funding source(s), the amount of funds expended, the amount of funds encumbered, the amount of funding requests anticipated, the amount of funds approved for future use and all other funding records and payments for FY21 pertaining to school transportation. The City responded on October 27, 2020 providing a fee estimate. Objecting to the fees, Ms. Holmes-Kireilis petitioned this office and this appeal, SPR20/2095, was opened as a result. Fee estimate – municipalities 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 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

Megan Bridges, Esq. SPR20/2095 Page 2 November 10, 2020 public record. G. L. c. 66, § 10(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 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 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.M.R. 32.06(4). The City’s October 27th fee estimate In its October 27, 2020 fee estimate, the City indicates that it has compiled responsive records, which include “. . . purchase orders reflecting payment to school transportation providers, invoices and records detailing bus trips and services provided, and letters of agreements between the City of Brockton and school transportation vendors.” The City explains that “. . . the invoices required redactions pursuant to M.G.L. c. 4, § 7(26)(a) and § 7(26)(c) to remove the names and social security numbers of the students referenced in the invoices. The task of compiling and redacting these documents required the coordination of three offices within the school department and took a combined total of six (6) hours to complete. The hourly rate of the lowest paid employees with necessary skill to compile and redact the responsive records in each of those departments is $26.25, and therefore exceeds the $25.00 per hour statutory cap. As such, the fee for producing the requested records is $100.00 [4 hours (6 hours- first 2 hours) x $25.00 per hour).” Fees to search for, compile, segregate, redact or reproduce a record request The Regulations provide that in cases where it is necessary to reproduce the requested records, a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § 10(d); see also 950 C.M.R. 32.07(2). Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. A municipality may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, § 10(d); see also 950 C.M.R. 32.06(4). Based on the City’s response, indicating that it is assessing a fee for 6 hours at a rate of $25.00 an hour for time spent compiling and redacting the requested records, it remains unclear why the City requires 6 hours to produce responsive records. It is also not certain from the City’s

Megan Bridges, Esq. SPR20/2095 Page 3 November 10, 2020 estimate how many hours are being allocated to compile and redact the responsive records, the number of pages the City is looking to redact and how many minutes per page the City requires to review the responsive records. The City must clarify these matters. Further, the City explained that “. . . the invoices required redactions pursuant to M.G.L. c. 4, § 7(26)(a) and § 7(26)(c) to remove the names and social security numbers of the students referenced in the invoices.” The City is advised that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). I am not aware that the City has submitted a petition under G. L. c. 66, § 10(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). Where the City has not submitted a petition under G. L. c. 66, § 10(d)(iv), I find the City may not assess a fee for redactions under Exemption (c). Additionally, although the City may assess a fee for redactions required by law, it is unclear the applicable statute(s) the City is relying on to assess its fees. Consequently, I find the City must provide further information detailing the applicable statute(s). Conclusion Accordingly, the City is ordered to provide Ms. Homes-Kireilis with a response to the request, provided 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jeanne Holmes-Kireilis