Commonwealth Transparency v. Nahant, Town of - Public Schools (SPR 20212730)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 2, 2021 SPR21/2730 Mr. Tony Pierantozzi Superintendent of Schools Town of Nahant Public Schools 290 Castle Road Nahant, MA 01908 Dear Superintendent Pierantozzi; I have received the petition of Commonwealth Transparency appealing the response of the Town of Nahant Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Commonwealth Transparency requested: “For the period January 1, 2016 through the date you respond with the responsive records, please provide the following: 1. Any and all public records requests seeking public records of [your School], and /or district; 2. All metadata from the requests in #1 above, including all contact information of the requestor, including but not limited to emails and text messages; 3. All electronic communications regarding #1 above, including but not limited to emails and text messages; and, 4. All responses, appeals, fee requests and responsive records resulting from the requests in #1 above. In addition, Commonwealth Transparency seeks electronic versions of responsive documents. If 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.” Initially, on October 14, 2021, the School confirmed receipt of the request, and stated, “[t]he information requested covers 5 years and 10 months of communications. The communications are stored both in electronic and in hard copy. The communications must be reviewed for student record information and confidential information. Such information will be redacted.” 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

Supt. Tony Pierantozzi SPR21/2730 Page 2 November 2, 2021 The School also informed Commonwealth Transparency that it will charge fees for the request, asked for an extension of time to respond, for modification of the request for text messages which the School posits will be impossible to provide. On October 19, 2021, the School emailed Commonwealth Transparency stating, “[t]he cost for this request (Commonwealth Transparency October 12, 2021 9:42 PM) is $255.69. This cost does not include searching text messages as stated previously.” As a result of the School’s responses, on October 19th, Commonwealth Transparency petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In its petition, Commonwealth Transparency objects to the School’s extension of time, and the School’s lack of specificity in providing its fee. Commonwealth Transparency asserts, “[t]he RAO cannot charge for records organization, only search, segregation and redaction which comports with specific exemptions, and that [t]he RAO failed to follow its statutory requirements under [G. L.] c. 66, § 10.” 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 town 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Supt. Tony Pierantozzi SPR21/2730 Page 3 November 2, 2021 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 19th fee estimate In its October 19th email, the School informed Commonwealth Transparency that the cost to provide the records, excluding a search for text messages, is $255.69. In its initial response, the School informed Commonwealth Transparency that the records are stored in both electronic and hard copy, that the records must be segregated for student record information and confidential information, and redacted. The School requested an extension of time for the response, and that the request be modified to remove text messages. School’s October 21, 2021 time and fee petition; Supervisor’s October 27, 2021 determination On October 21st, the School filed a petition with the Supervisor for an extension of time to produce responsive records, to assess fees for time spent segregating and/or redacting responsive records, and for a waiver of the statutory limits to fees to segregate and/or redact. See SPR21/2759 Determination of the Supervisor (October 27, 2021). In my October 27th determination, I found that the School had established good cause for a time extension of 30 business days, and that the School may assess a fee for segregation and redaction of information under the attorney-client privilege, and Exemptions (a) and (c) of the Public Records Law. As a result of my determination of October 27th, I find that the School must provide Commonwealth Transparency with a supplemental fee estimate in compliance with my October 27th determination and the requirements under G. L. c. 66, § 10(d)(i-iv). The School’s October 19th response only provided an amount of $255.69 for the records, except a search for any text messages. The current appeal The School is advised that the supplemental estimate must breakdown how many hours are necessary for the tasks of searching for, compiling, segregating, redacting and/or reproducing the responsive records. The School is 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’s October 19th fee estimate is unclear as to whether it is required to provide the first 2 hours of employee time without charge. The School must clarify how many hours are

Supt. Tony Pierantozzi SPR21/2730 Page 4 November 2, 2021 necessary for the tasks in providing the records, and whether it is required to reduce the amount of time by two hours in accordance with G. L. c. 66, § 10(d)(iii). The School is also required to explain the hourly rate of 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. Further, the School claimed that the records must be segregated and/or redacted due to attorney-client privilege information, information of students and/or parents and confidential information. In the October 27th determination of the Supervisor, the School was approved to assess a fee for time spent segregating or redacting records. In its supplemental fee estimate, the School must provide more specificity as to the exemptions claimed to segregate and redact such content from the responsive records. See G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. - - - - v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Order Accordingly, the School is ordered to provide Commonwealth 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, Rebecca S. Murray Supervisor of Records cc: Commonwealth Transparency