Malden Transparency v. Alma del Mar Charter School (SPR 20212499)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 13, 2021 SPR21/2499 Emily Darrow Chief of Staff Alma del Mar Charter School 515 Belleville Ave New Bedford, MA 02746 Dear Ms. Darrow: I have received the petition of Malden Transparency appealing the response of the Alma del Mar Charter School (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 26, 2021, the requestor sought “[a]ll billing statements and/or invoices from Murphy, Hesse, Toomey & Lehane, LLP, . . .[,]” and “[a]ll documents evidencing payments made to Murphy, Hesse, Toomey & Lehane, LLP. . . . For the time period January 1, 2019 through the date you respond with the responsive documents[.]” On September 28, 2021, the School provided a fee estimate. Objecting to the fees, the requestor petitioned this office and this appeal, SPR21/2499, 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 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). 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

Emily Darrow SPR21/2499 Page 2 October 13, 2021 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 September 28th fee estimate In its September 28, 2021 fee estimate, the School states that it “. . . paid Murphy, Hesse, Toomey & Lehane, LLP for a total of less than $119.50 over two transactions in 2019. These documents are only available in a nonelectronic format. It would cost $54.60 to locate these records and provide them to you in an electronic format.” Although the School stated that it is assessing a $54.60 fee to locate records and produce them in electronic format, it is unclear how the School calculated its fee. Particularly, it is unclear how many hours will be spent locating the responsive files. The School must provide further details regarding the tasks involved in locating and producing the records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The Regulations provide that a municipality with a population of 20,000 or fewer may assess a fee for the first two hours of work performed. See 950 C.M.R. 32.07(2)(m)(2). Population data shall be determined by the decennial U.S. Census and it is the burden of the municipal RAO to provide such information in its response. 950 C.M.R. 32.07(2)(m)(2)(i-ii). The School’s fee estimate does not make clear if this is the case. As such, the School must clarify this issue. Under the Public Records Law, 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. G. L. c. 66, § 10(d)(iii). However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). Consequently, the School must provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. Conclusion Accordingly, the School is ordered to provide the requestor 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.

Emily Darrow SPR21/2499 Page 3 October 13, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden Transparency