Steven Fitzgerald v. Everett, City of - Public Schools (SPR 20210998)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 23, 2021 SPR21/0998 Francesse J. Canty, Esq. Director of Human Resources Everett Public Schools 121 Vine Street Everett, MA 02148 Dear Attorney Canty: I have received your petition on behalf of Everett Public Schools (School) seeking an extension of time as well as permission to charge in excess of the statutory fees in responding to a request made by Steven Fitzgerald. G. L. c. 66, § 10(c). As required by law, it is my understanding that the School furnished a copy of this petition to Mr. Fitzgerald. Id. Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). 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

Francesse J. Canty, Esq. SPR21/0998 Page 2 April 23, 2021 Petitions to Assess Fees – Municipality 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) 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). Current Petition In its petition dated April 20, 2021, the School seeks “…an extension of 30 days to respond to Mr. Steven Fitzgerald on the grounds that Mr. Fitzgerald has sent the District three (3) separate requests for information on April 5, 8 and 13. The District has replied to the April 5 request but is seeking an extension for the April 8 and 13 request.” The School states, “[t]he District is diligently trying to comply with Mr. Fitzgerald’s multiple requests, however providing such information is time consuming and difficult to fulfill on command.” The School explains, “[w]e are in the process of bringing back our students back to school for full-time, in-person instruction as we continue to navigate the unprecedented challenges of a global pandemic. The EPS does not have the personnel who can be taken away from their responsibilities to our students, staff, and families.” With respect to fees, the School “…is petitioning for a fee to segregate and redact records based on Mr. Fitzgerald’s request, dated April 13, 2021. The District is requesting a fee of $50 per hour due to the fact that Mr. Fitzgerald’s request is substantial and requires legal interpretation to determine what is public information and what is protected.” Although the School states it “…is petitioning for a fee to segregate and redact records,” it has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information.

Francesse J. Canty, Esq. SPR21/0998 Page 3 April 23, 2021 Conclusion I find the School has not met its burden to explain how the response could not be prudently completed without segregation or redaction. Please note, however, this does not preclude the School from charging for segregation and redaction that is required by law. Additionally, it is unclear how the request could not be prudently completed without a fee in excess of $25 per hour. With respect to the School’s petition for time, I find the School has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the School an extension of 30 business days to furnish copies of records responsive to Mr. Fitzgerald’s request. See G. L. c. 66, § 10(c). To the extent possible, the School must provide responsive records on a rolling basis. Mr. Fitzgerald may seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Steven Fitzgerald Supt. Priya Tahiliani