David G. Sobol v. Dover-Sherborn Regional School District (SPR 20211467)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 24, 2021 SPR21/1467 Dr. Andrew Keough Dover-Sherborn Regional School District Administrative Building 157 Farm Street Dover, MA 02030 Dear Dr. Keough: I have received the petition of David Sobol, Esq. appealing the response of the Dover- Sherborn Regional School District (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 26, 2021, Attorney Sobol requested the following: [1] All correspondence from, between and among any of the Regional School Committee (“RSC”) members referencing, discussing or relating in any way to (i) the RSC election and (ii) any of the candidates running for election on May 17, 2021. The relevant time period for the request is from December 1, 2020 through May 25, 2021. [2] All correspondence from, between and among any of the RSC members referencing, discussing or relating in any way to the RSC search for a new Superintendent for the Public Schools of Dover and Sherborn. This request shall include all correspondence and deliberation relating to internal and external candidates. The relevant time period for the request is from February 1, 2021 through May 25, 2021. The School responded on June 7, 2021, providing a fee estimate. Objecting to the fees, Attorney Sobol petitioned this office and this appeal, SPR21/1467, 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

Dr. Andrew Keough SPR21/1467 Page 2 June 24, 2021 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 School’s June 7th fee estimate In its June 7, 2021 fee estimate, the School states that a preliminary search revealed approximately 1600 pages of documents that could be responsive. The School indicates that the records have to be reviewed to determine the applicability of exemptions as they may contain “. . . confidential student records, personnel files, and attorney-client communications. . . . The [School] estimates that it will need approximately 1 minute to search, segregate, and redact each of these [1600 pages of documents].” The School further indicates that “. . . the lowest paid employee’s rate exceeds $25.00, as such the hourly rate used will be the maximum allowed by a municipality. In certain circumstances, the [School] may have the records reviewed by legal counsel. . . .” As such, the School provided the following estimate for copying, search, and segregation time: 1600 Pages x 1 minute = 26.67 - 2 free hours 24.67 hours x $25 Total Estimated Cost: $616.75 In its response, the School states that it requires 1 minute to search, segregate and copy each of the 1600 records. Although the School states that this amounts to 26.67 hours, it remains unclear how many hours the School is allocating for search, segregation and copying. The School must clarify this matter. Providing records electronically In his appeal petition, Attorney Sobol states “[w]hile I agree that the District may assess a reasonable fee to comply with the request, an estimate of 26 hours of work and a $616.75 charge is unreasonable on its face. The Public Records Law emphasizes the production of records

Dr. Andrew Keough SPR21/1467 Page 3 June 24, 2021 efficiently and electronically. G.L.c. 66, sec 6A(d). As a result, the RAO must provide the public records by electronic means in a searchable, machine readable format (unless the record is not available in electronic form or is requested in another format). . . .” Per G. L. c. 66, § 6A(d), “[t]he records access officer shall provide the public records to a requestor by electronic means unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in a usable electronic form. The records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format.” Based on the School’s response, it is unclear if these records exist in electronic form. If so, it is not certain why the School is assessing a fee for copying. The School must clarify this matter. Payment of fees In his appeal petition, Attorney Sobol states “[i]n addition to seeking an unreasonably high payment for production of the records, the RAO is also requiring (i) prepayment of the fee and an (ii) additional 15 days from the date of payment to produce the records. I believe the response is inconsistent with applicable Massachusetts regulations.” Please note, under the Public Records Law, “[a] records access officer . . . shall at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record as defined in clause twenty-sixth of section 7 of chapter 4, or any segregable portion of a public record, not later than 10 business days following the receipt of the request, provided that: . . . (iii) the records access officer receives payment of a reasonable fee as set forth in subsection (d).” G. L. c. 66, § 10(a)(iii) (emphasis added). To the extent possible, the School must provide responsive records on a rolling basis. Further, Attorney Sobol states, “. . . the RAO states that the [School] will not charge for the first 2 hours for ‘copying, search and segregation times fees …’ However, applicable regulations provide that the [School] may not assess a fee for the first 4 hours of time spent searching for, compiling, segregating, redacting and reproducing a requested record. 950 CMR 32.07(2)(l).” Please note, the provision cited by Attorney Sobol applies to agencies. Where the School is a municipality, the applicable statute is G. L. c. 66, § 10(d)(iii), which states that “if a municipality is required to devote more than 2 hours of employee time to search for, compile, segregate, redact or reproduce a record requested, the records access officer 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 the record requested . . .”

Dr. Andrew Keough SPR21/1467 Page 4 June 24, 2021 Conclusion Accordingly, the School is ordered to provide Attorney Sobol 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: David Sobol, Esq.