Brian DeLacey v. Mystic Valley Regional Charter School (SPR 20210123)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 2, 2021 SPR21/0123 Stephanie Solio Mystic Valley Regional Charter School 4 Laurel Street Malden, MA 02148 Dear Ms. Solio: I have received the petition of Brian DeLacey appealing the response of the Mystic Valley Regional Charter School (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 2, 2020, Mr. DeLacey requested “. . . a copy of all records published to your MVRCS Facebook page, at the URL . . .” On December 9, 2020, Mr. DeLacey clarified his request and stated “. . . I am interested in ALL of your MVRCS Facebook page records under the following checkbox items for the standard Facebook export function: Posts, Photos and Videos, Events, Stories, Jobs, Groups, Services, Likes and Reactions or Comments.” Previous appeals The requested records were the subject of previous appeals. See SPR20/2259 Determination of the Supervisor of Records (December 2, 2020) and SPR20/2521 Determination of the Supervisor of Records (January 5, 2021). In my January 5th determination, I directed the School to explain how producing records constitutes creation of a record. Accordingly, I ordered the School to provide Mr. DeLacey with a response in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the School provided a response on January 18, 2021, which included a fee estimate. Unsatisfied with the School’s response, Mr. DeLacey petitioned this office and this appeal, SPR21/0123, 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 public record. G. L. c. 66, § 10(d)(i). 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

Stephanie Solio SPR21/0123 Page 2 February 2, 2021 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 School’s January 18th fee estimate In its January 18, 2021 fee estimate, the School states that “[t]he number of Facebook ‘Posts’ to the School’s Facebook page are as follows: 2020-418; 2019-426; 2018-117; 2017-126; 2016-122; 2015-107; 2014-38; Total – 1354.” The School further states that “. . . after experimentation, it was calculated that an administrator retrieving the posts alone would average 20 posts per hour. This encompasses the time necessary to scroll to and screenshot each post. This would approximate 68 hours of work for just the posts you requested. No one under the hire of the School capable of doing this work makes $25/hour. Thus the Posts portion of your request would total $1650 (with the first two hours free).” Based on the School’s response, it is unclear why it requires 68 hours to locate, compile and produce responsive records. The School states that it would require an hour to scroll to and screenshot 20 posts. However, it is unclear how this amount of time is necessary. If there are additional tasks involved, the School must provide further details regarding what each task entails. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). In his appeal petition, Mr. DeLacey states “[t]hey provide no proposal for producing the balance of the records I requested. Moreover, they are proposing providing records not in their original format, but in a ‘screenshot’ format. This would not be the ‘searchable machine- readable’ form required under G.L. c. 66, § 10.” Pursuant to 950 C.M.R. 32.07(1)(c), “[t]he records access officer shall presume that a requestor prefers copies provided in machine-readable electronic form, when electronic form is available . . .” Also, “[a] records access officer shall presume a requestor prefers electronic copies and must provide electronic records in native form when possible.” 950 C.M.R. 32.07(1)(d). Based on Mr. DeLacey’s claim, it is unclear whether it is possible for the School to provide records in a machine-readable format or in their native form. It is additionally uncertain if the School is assessing a fee for producing other records reflected in Mr. DeLacey’s December 9th modified request. Specifically, it is unclear if the School’s fee estimate includes the production of “. . . Photos and Videos, Events, Stories, Jobs, Groups, Services, Likes and

Stephanie Solio SPR21/0123 Page 3 February 2, 2021 Reactions or Comments.” The School must clarify this matter. Mr. DeLacey further claims “[o]n 1/18/2021, after receiving the [School’s] estimate, I consulted with an independent IT expert to estimate the likely effort involved in providing a copy of the records sought in my original request. That estimate was approximately 20 minutes of staff time, which might be generous. . . . This is in accord with my own estimates from personal knowledge of the work effort involved. This leads me to further conclude the 1/18/2021 communication from [the School] fails to provide a ‘good faith’ estimate as required by law.” Based on the above, it is unclear if the School is able to produce the records by using the method suggested by Mr. DeLacey in his November 13th communication. This office encourages Mr. DeLacey and the School 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). Conclusion Accordingly, the School is ordered to provide Mr. DeLacey 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: Brian DeLacey