Christina Aurilio-O'Shea v. Billerica, Town of - Public Schools (SPR 20212061)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 30, 2021 SPR21/2061 Robin Hulsoor Director of Finance and Operations Town of Billerica Public School 365 Boston Road Billerica, MA 01821 Dear Ms. Hulsoor: I have received the petition of Christina Aurilio appealing the response of the Town of Billerica Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Ms. Aurilio requested: “…all correspondence between [the School] and DESE that shows how [the School] made [its] decision for mask requirements; and [a]ny and all correspondence with the School Committee, any [School] employees including the teachers’ union regarding face masks.” Responses/communications between the parties On August 10, 2021, the School sought more specifics and/or modifications to the request, including a list of names of employees that Ms. Aurilio wishes the School to search for, the specific timeline of dates to search, and any keywords to search, including “masks” or “masks required.” It is the School’s intent to have the query narrowed to enable the IT Department staff to search for the responsive records. The School also advised Ms. Aurilio that there may be a charge for services if the work exceeds 2 hours. Ms. Aurilio responded on August 10th to specify/modify her request stating, “[h]ead of the Union, all School Committee Members, all [S]chool Principals and Superintendent; [t]he emails I am requesting would be from the last 6 months; and [k]eywo[r]ds to search would be masks and face coverings.” On August 16th, the School provided an estimate which stated: “…the estimated costs associated with your communication query of 15+ individuals for the past six months and 2 separate keyword searches. Our IT [D]epartment estimates it will take approximately 16 hours to individually query, accumulate data, read through and redact any student information and put it into an electronic form for you. The total cost per hour is $35 so the total cost for [Ms. Aurilio’s] 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

Robin Hulsoor SPR21/2061 Page 2 August 30, 2021 request would be $560…If [Ms. Aurilio] require[s] paper copies there will be an additional cost of $.05/page.” Also on August 16th, the parties continued to communicate, and Ms. Aurilio stated, “[o]kay so what if I just requested this information for the last 45 days. What would that cost look like? Again I am requesting emails regarding masks/face coverings between: Head of the Union, all School Committee Members, all school Principals and Superintendent.” In your response on August 16th, you advised Ms. Aurilio regarding her modification of the request, “[c]utting down the search from 6 months to 45 days could possibly trim an hour or two off the cost as the query to 15 individual emails would still return 100’s of emails. Please let me know how to proceed.” Unsatisfied with the response, on August 16th, Ms. Aurilio petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In her August 16th petition, Ms. Aurilio asserts, “[t]he costs are not correct, I am not getting a clear breakdown of how they came to this number, it doesn’t give me any information on where I could appeal, also the person listed on- line is the wrong contact regarding public records request.” Fee estimate – Municipalities If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records ----- custodian must provide the responsive records. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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).

Robin Hulsoor SPR21/2061 Page 3 August 30, 2021 The School’s August 16th fee estimate In its August 16, 2021 fee estimate, the School estimated its IT Department will need 16 hours of time at $35 per hour to run and individually query, accumulate the data, read, redact any student information, and produce the records electronically. The School estimates the total cost of $560.00 to provide the email records. On August 16th, Ms. Aurilio suggested a modification of the August 6th request from 6 months of emails to only 45 days of emails specific to 15 individuals, and with a keyword search of “face masks,” “face coverings,” and/or face masks/coverings’ requirements.” The School did not provide a revised estimate, its response only stated, “[c]utting down the search from 6 months to 45 days could possibly trim an hour or two off the cost as the query to 15 individual emails would still return 100’s of emails.” In its fee estimates, the School estimates that 16 hours of time at $35 per hour for a total cost of $560 is necessary for the production of records responsive to the request. The School asserts that the tasks of search, compilation, segregation, redaction and production of the records in electronic format is necessary. Based on the School’s response, it is unclear why 16 hours of time is required to provide the responsive records, even after Ms. Aurilio’s modification from 6 months of emails to 45 days of emails. The School has also not explained whether it has reduced its estimate to provide two hours of free time from any fees as required by the Public Records Law. Please be advised, 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). The School must clarify this issue. In addition, the School assessed a fee for segregation and redaction of possible student record information. The School may not assess a fee for segregation and redaction unless such segregation and redaction is required by law, or with permission of the Supervisor through a petition to charge such fees. To the best of my knowledge, the School has not filed a petition to charge fees for segregation and redaction of the emails. See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). It is also unclear whether the emails contain such student record information; therefore, the School must clarify this fee assessment. Finally, the School has assessed an hourly rate of $35.00 per hour for the IT Department to search, compile, segregate, redact and produce the email records. However, $25.00 per hour is the maximum allowed by the Public Records Law. See 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).

Robin Hulsoor SPR21/2061 Page 4 August 30, 2021 The School has not explained whether the IT Department employee’s hourly rate is the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact and/or reproduce the requested records. Nor, to the best of my knowledge has the School filed a petition with the Supervisor to charge in excess of the maximum hourly rate of $25 per hour under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii). The School must clarify this hourly rate. Additional issues in this appeal In her petition, Ms. Aurilio informed this office that the RAO listed on the School District’s website may be incorrect. Under the Public Records Law, each municipality is required to designate 1 or more employees as records access officers and shall post in a conspicuous location at its offices and on its website, if any, the name, title, business address, business telephone number, and business email address of each records access officer. G. L. c. 66, § 6A(a); see also 950 C.M.R. 32.04(1), (2), (4). Furthermore, Ms. Aurilio informed this office that the School’s response did not advise her of her right to seek redress of the School’s response. Under the Public Records Law, a requestor has a right to appeal to the Supervisor under subsection (a) of G. L. c. 66, § 10A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the Superior Court under subsection (c) of G. L. c. 66, § 10A. Conclusion Accordingly, the School is ordered to provide Ms. Aurilio with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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: Robin Hulsoor