David G. Sobol v. Dover-Sherborn Regional School District (SPR 20211704)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 23, 2021 SPR21/1704 Kathleen Smith, J.D. Interim Superintendent Dover-Sherborn Regional School District Administrative Building 157 Farm Street Dover, MA 02030 Dear Superintendent Smith: I have received the petition of David Sobol, Esq. appealing the response of the Dover- Sherborn Regional School District (School/District) 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. Previous appeal This request was the subject of a previous appeal. See SPR21/1467 Determination of the Supervisor of Records (June 24, 2021). In my June 24th determination, I directed the School to clarify whether records exist in electronic format and why it was assessing a copying fee. Accordingly, the School was ordered to provide Attorney Sobol with a response. The School provided a response on July 9, 2021. Unsatisfied with the School’s response, Attorney Sobol petitioned this office and this appeal, SPR21/1704, was opened as a result. 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

Superintendent Kathleen Smith SPR21/1704 Page 2 July 23, 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) 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 July 9th fee estimate In its July 9, 2021 fee estimate, the School states that “[i]t will not be assessing a fee for ‘copying’ records because the records may be provided electronically. Whereas the District has already conducted a preliminary search for records, it also will not be assessing a fee to ‘search’ for the records.” The School explains that “. . . given the wide scope of your request, it is very likely that the documents compiled contain student record information, personnel information, or documents unrelated to employee’s official capacity. The District estimates approximately 30 seconds to segregate and 30 seconds to redact each page.” The School notes that it would require additional 15 business days to provide records upon payment of fees and would provide records on a rolling basis. The School provided the following estimate: 1600 Pages x 1 minute (30 seconds to segregate & 30 seconds to redact) = 26.67 - 2 free hours 24.67 hours x $25 Total Estimated Cost: $616.75 In its response, the School states that the records may “contain student record information, personnel information, or documents unrelated to employee’s official capacity[,]” but it does not cite any exemptions under the Public Records Law. If the School intends to redact records under Exemption (a), it must cite the applicable statute(s). Please note that a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction

Superintendent Kathleen Smith SPR21/1704 Page 3 July 23, 2021 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 School has submitted a petition under G. L. c. 66, § 10(d)(iv). 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). As such, the School may not assess a fee for redacting records not required by law. Payment of Fees In his appeal petition, Attorney Sobol states “[i]n the July 9, 2021 letter the [School] once again states that it will require prepayment of fees prior to complying with the request and the District will need 15 working days from payment to respond to the request. Again, we are currently 33 working days from the date of the request and the RAO is requiring 15 additional days? As stated in my prior letter, the Public Records statute and regulations do not provide any authority for an RAO to require prepayment of fees to comply with a public records request. When the documents are ready for production, the fee will be paid. . . .” In my June 24th determination, I stated that 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). As such, Attorney Sobol and the School are encouraged to communicate to facilitate the remittance of fees, as well as the production of records. Further, the School noted in its July 9th response that records would be provided on a rolling basis. 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: Matthew Sobol, Esq.