Marci Anthony v. Hull, Town of - Public Schools (SPR 20212336)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 14, 2021 SPR21/2336 Attorney Kevin Freytag Town of Hull Public Schools 18 Harborview Road Hull, MA 02045 Dear Attorney Freytag: I have received your petition on behalf of the Town of Hull Public Schools (Town) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor, Ms. Macri Anthony. Id. In a letter dated August 26, 2021, Ms. Anthony requested “a list of curricula both printed and / or in a digital format being used by the district to teach human sexual education or human sexuality” and “invoices dated from 2016-2021 for the purchase of all education resources involving human sexual education or human sexuality issues, including printed materials, demonstrative aids and subscriptions to online content, implemented or maintained by the district.” Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The 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

Attorney Freytag SPR21/2336 Page 2 September 14, 2021 first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 September 7, 2021 petition, the Town requests “that it be authorized to charge a fee of $81.86 per hour for Hull’s Director of Curriculum and Assessment to create a list that is responsive to the first section of the request, and $30.00 per hour for Hull’s full charge bookkeeper to respond to the second section of the request.” The Town explains that they are “not [in] possession of any record that is responsive to the first section of the request,” but are “willing to create a record that will be responsive to the first section of the request.” The Town estimates that “it will take approximately one (1) hour per grade (1-12) to create the type of list being requested, but, for purposes of this estimate, will round down to 10 hours.” The Town states that it will “require its curriculum employee to create the list, as they are the most qualified person for that task. That employee’s hourly rate is $81.86.”

Attorney Freytag SPR21/2336 Page 3 September 14, 2021 With respect to the second section of the request, the Town states that they are “in possession of records that are responsive.” The Town estimates that “it will take approximately 2 hours per calendar year for a total of 10 hours to search for the records.” The Town explains that the “task will be performed by the full charge bookkeeper, as they are the lowest paid employee who is capable of performing the task,” at an hourly rate of $30. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). As the creation of a record is outside the scope of the Public Records Law, I am unable to opine on the assessment of a fee for the creation of a record. Conclusion I find the Town has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). I find the Town may assess a fee limited to $30.00 per hour for the bookkeeper. When preparing a fee estimate for the provision of the requested records the Town is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Town must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The Town must provide a response to Ms. Anthony within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Anthony may appeal the Town fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Ms. Anthony has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4),10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ms. Marci Anthony