Malden Transparency v. Mendon-Upton Regional School District (SPR 20212568)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 18, 2021 SPR21/2568 Lauren Sannicando Administrative Assistant to the Superintendent of Schools Mendon-Upton Regional School District 150 North Avenue Mendon, MA 01756 Dear Ms. Sannicando: I have received the petition of Malden Transparency appealing the response of the Mendon-Upton Public School District (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 27, 2021, Malden Transparency requested the following: For the time period January 1, 2019 through the date [the School] respond[s] with the responsive documents . . . 1. All billing statements and/or invoices from [a named law firm]. 2. All documents evidencing payments made to [a named law firm]. On October 1, 2021, the School provided a response that provided a $100 fee for producing the responsive records. Objecting to the fee, on October 4th, Malden Transparency petitioned the Supervisor of Records (Supervisor), and this appeal was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Lauren Sannicandro SPR21/2568 Page 2 October 18, 2021 establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. 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 October 1, 2021 Fee Estimate In its October 1st fee estimate, the School states, “…the estimated time to prepare your requested information, according to our [School’s] [D]irector of [F]inance and [O]perations, would be a minimum of 2.0 hours. Compensation for this task will be $100 payable to [the School].” The School has not met its burden of specificity in providing this estimate. The School must explain what tasks will be conducted for two hours of time for a total of $100. The School 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 did not explain whether the two hours of employee time was assessed using the lowest paid hourly rate of the employee who has the necessary skill required

Lauren Sannicandro SPR21/2568 Page 3 October 18, 2021 to search for, compile, segregate, redact or reproduce the record(s) 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). Whereas the $25 hourly rate is the maximum allowed by the Public Records Law, it is unclear whether the School has assessed the lowest paid hourly rate of the employee with the necessary skill to conduct the tasks, the School must clarify the hourly rate it has assessed. Finally, it is unclear whether any of the responsive records will be segregated and redacted under the Public Records Law exemptions. The School is advised, 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). It is unclear whether the School has filed a petition to charge for segregation and/or redaction. The School must clarify this issue. Order Accordingly, the School is ordered to provide Malden Transparency 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, 1.f<J 1A.J! ~J W~ ,~( J-. ~·-- o Rebecca S. Murray Supervisor of Records cc: Malden Transparency