Doreen Healy v. Tewksbury, Town of - Public Schools (SPR 20211225)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 26, 2021 SPR21/1225 Christopher Malone Superintendent Tewksbury Public Schools 139 Pleasant Street Tewksbury, MA 01876 Dear Superintendent Malone: I have received the petition of Doreen Healy appealing the response of the Tewksbury Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 24, 2021, Ms. Healy requested “…SC packets (all documents that all SC members receive before meetings) for Feb2020 to Feb 2021. Also any and all correspondence with SC members and Tew[k]sbury district regarding SC meetings.” The School provided a response on March 10, 2021, which included a fee estimate. Unsatisfied with the School’s response, Ms. Healy petitioned this office and appeal, SPR21/1225, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Christopher Malone SPR21/1225 Page 2 May 26, 2021 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). 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 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). 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). The School’s March 10th response In its March 10, 2021 response, the School states a “…search identified 3,666 emails” responsive to the request. The School’s estimate cost totals $6,110.00, at a rate of $25.00 per hour for 244 total hours. The School estimates four minutes per record for “[s]earch, [c]ompilation, [r]eview and [r]edaction time.” The School indicates “‘[r]edaction [t]ime’ is time spent making redactions required by law to preserve student, employee and attorney client confidentiality.” The School notes the first two hours of time has been deducted from the total cost estimate. The School further indicates “…the district may be able to reduce the cost to you of providing the requested records” and provides three suggestions for modification. The School provided a supplemental response on May 18, 2020, explaining “[g]iven that those documents might contain student record, personnel information, attorney-client privileged, or other protected confidential information, the District anticipated that each individual email record would require review, and that many documents would likely require careful review and redaction. Thus, the District estimated it would take an average of approximately four minutes per record to search, compile, review, and redact those documents, for a total of 244 hours.” The School indicates “[t]he people who would conduct that work typically would be administrators or the District’s counsel, all of whom are compensated at more than $25.00 per hour. Thus, the District estimated the cost of that work to be $25.00 per hour, which is the highest permissible rate.”

Christopher Malone SPR21/1225 Page 3 May 26, 2021 In regard to the School’s May 18th response, Attorney Stewart A. Engel provided a response on behalf of Ms. Healy on May 20, 2021, stating, “[i]t is Ms. Healy’s understanding that during the applicable time period of her request, there were no more than 15 meetings of the Tewksbury School Committee, meaning that any email correspondence involving five (5) members of the School Committee with respect to these meetings would be relatively limited in nature.” Attorney Engel contends “…it is inconceivable and clearly factually inaccurate…to suggest and claim there are 3,666 emails which require individual scrutiny based upon Ms. Healy’s request.” The School’s fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. Specifically, it is unclear why it will take the School “four minutes per record to search, compile, review, and redact…” The School must provide more detail regarding the tasks necessary to produce the responsive records, as well as specify the time being allotted to each task. Further, the School is advised that a municipality is not permitted to charge for time spent segregating or redacting records unless segregation and redaction is required by law or approved by the Supervisor of Records under a petition. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). The School must clarify these matters. This office encourages Ms. Healy and the School to continue to communicate to facilitate providing records more efficiently and affordably. Any fee estimate by the School must be in compliance with the Public Records Law and its Regulations. Conclusion Accordingly, the School is ordered to provide Ms. Healy with a revised response, 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: Doreen Healy Kelly T. Gonzalez, Esq. Stewart A. Engel, Esq.