Commonwealth Transparency v. Ashland, Town of - Public Schools (SPR 20212772)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 4, 2021 SPR21/2772 Karen Johnson Executive Assistant to the Superintendent Ashland Public Schools 75 Central Street Ashland, MA 01721 Dear Ms. Johnson: I have received the petition of Commonwealth Transparency appealing the response of the Ashland Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 13, 2021, Commonwealth Transparency requested the following: For the time period January 1, 2016 through the date you respond with the responsive documents, please provide the following; 1. Any and all public records requests seeking public records of your school(s), and/or district(s). 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. 4. All responses, appeals, fee requests and responsive records resulting from the requests in #1 above. Previous Petition This request was the subject of a petition from the School. See SPR21/2768 Supervisor of Records Determination (October 29, 2021). In my October 29th 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. The School provided Commonwealth Transparency with a fee estimate on October 22, 2021. 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

Karen Johnson, RAO SPR21/2772 Page 2 November 4, 2021 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 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 22nd Fee Estimate In its October 22, 2021 fee estimate, the School states that it “is in possession of approximately 600 pages of public records requests responsive to your Request #1 & 4. With

Karen Johnson, RAO SPR21/2772 Page 3 November 4, 2021 respect to your Requests # 2 & 3, the [School] searched its email system for the words ‘public records’ and/or ‘FOIA.’ The [School’s] search generated 17,000 emails which may be responsive to your request and will need to review each email to ensure responsiveness. The [School] is not aware of any text messages responsive to your request. The [School] has no other responsive documents.” The School goes on to explain that “the records [Commonwealth Transparency] seek[s] need to be reviewed, and potentially redacted, for several reasons.” The School further explains the following: In this case, the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce the record requested is a salaried employee whose effective hourly rate exceeds $25 per hour. Notwithstanding that rate, a rate of $25 per hour will be used to calculate the following fee estimate. . . . The [School] estimates that it will take approximately thirty (30) seconds per email to read the email and determine whether it is responsive to the request. Furthermore, the [School] has already spent 2 hours searching for the records. As a result, the [School] estimates a total of 143.6 hours for search of the records. . . . The [School] estimate that it will take approximately 1 minute per page to complete its segregation, and potential redaction of the records sought in your request. As a result, the [School] estimates a total of 10 hours for segregation and redaction. . . . 143.6 hours for search plus 10 hours for segregation and redaction is a total of 153.6 hours. 153.6 hours multiplied by $25 per hour yields a fee estimate of $3,840. The actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process. Based on the October 22nd fee estimate, I find the School has met its burden in responding to Commonwealth Transparency’s request at this time. This office continues to encourage Commonwealth Transparency and the School to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (a municipality shall suggest -- a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Conclusion Any revision to the request would result in the requirement to issue a revised estimate. Accordingly, I will consider this administrative appeal closed.

Karen Johnson, RAO SPR21/2772 Page 4 November 4, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Commonwealth Transparency Superintendent James Adams