Malden Transparency v. Swampscott, Town of - Public Schools (SPR 20212636)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 22, 2021 SPR21/2636 Pamela R. H. Angelakis, M.A., M.Ed. Superintendent Town of Swampscott Public Schools 207 Forest Avenue Swampscott, MA 01907 Dear Superintendent Angelakis: I have received the petition of Malden Transparency appealing the response of the Town of Swampscott Public Schools (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, 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]. The School provided Malden Transparency with an October 7, 2021 response, including a fee estimate for $760.80. Objecting to the fee estimate, including the hourly rate and a copying charge of 5 cents per page, Malden Transparency petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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 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

Pamela R. H. Angelakis, M.A., M.Ed. SPR21/2636 Page 2 October 22, 2021 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 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. 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 7, 2021 Fee Estimate The School’s October 7th fee estimate states, “[Malden Transparency] will be charged 5 cents per page for photocopies of public records. The [School] estimates your request requires 216 photocopies to be made at a total cost of $10.80.” The School is advised pursuant to 950 C.M.R. 32.07(1)(c), “[t]he records access officer shall presume that a requestor prefers copies provided in machine-readable electronic form, when electronic form is available . . .” Also, “[a] records access officer shall presume a requestor prefers electronic copies and must provide electronic records in native form when possible.” 950 C.M.R. 32.07(1)(d). Malden Transparency indicated in its request its preference for receiving the records in an electronic format. In its petition for an appeal, Malden Transparency states, “[i]f any responsive documents exist in a non-electronic format, please include an estimate of the actual costs to scan the documents and provide them electronically.” It is unclear whether the documents exist in electronic format, or whether the School could scan and provide such records to Malden Transparency via email. The School must clarify this issue.

Pamela R. H. Angelakis, M.A., M.Ed. SPR21/2636 Page 3 October 22, 2021 In addition, the School explains, “…we estimate that it will take approximately 30 hours to search, redact, and copy these documents. You will be charged a prorated fee of $25 per hour for the search and segregation time associated with this request.” The School further states regarding the maximum hourly rate allowed by the Public Records Law of $25 per hour, “…the lowest-paid employee capable of performing this task is higher than $25 per hour. The [School] estimates your request requires 30 hours of search, segregation time, redacting and photocopying at a total cost of $750.00.” 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). It is unclear whether the School is required to reduce its fee for search, compilation, segregation, redaction or reproduction of the records, and if required, whether it has already done so. The School must clarify this issue. Neither has the School detailed how much time is required for the tasks of searching for the responsive records, and segregating and/or redacting the responsive records. Please note, the School did not explain whether such segregation and/or redaction is required by law. The School did not claim any privileges or exemptions to support such fees for segregate and/or redact content from the records. 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). To the best of my knowledge the School did not file a petition with the Supervisor to charge for segregation and/or redaction that is not required by law. I find that the School did not meet its burden in responding to this request. The School must clarify its fee for segregation and redaction. Conclusion Accordingly, the School must provide Malden Transparency with a response to the request, 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: Malden Transparency