Commonwealth Transparency v. Berkshire Hills Regional School District (SPR 20212776)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 4, 2021 SPR21/2776 Doreen Twiss Berkshire Hills Regional School District P.O. Box 617 50 Main Street Stockbridge, MA 01262 Dear Ms. Twiss: I have received the petition of Commonwealth Transparency appealing the response of the Berkshire Hills Regional School District (District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 12, 2021, the requestor sought the following: 1. Any and all public records requests seeking public records of [the] 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 District. See SPR21/2761 Determination of the Supervisor of Records (October 28, 2021). In my October 28th determination, I found that the District had established good cause for a time extension of 30 business days and that the District may assess a fee for segregation and redaction. The District provided the requestor with a fee estimate on October 21, 2021. Objecting to the fees, the requestor petitioned this office and this appeal, SPR21/2776, 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 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

Doreen Twiss SPR21/2776 Page 2 November 4, 2021 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 District’s October 21st fee estimate In its October 21, 2021 fee estimate, the District states that it “is in possession of approximately 500 pages of ‘responses, appeals, fee requests. And responsive records resulting from these requests.’” The District explains that “[e]ach of the records . . . must also be reviewed to determine if any exemptions or privileges apply.” The District cites Exemptions (a), (c), and the attorney-client privilege. The District explains that although the hourly rate of the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce the records requested exceeds $25 per hour, it will cap its hourly rate at $25 an hour. The District states that according to the 2020 Census data, its population is 12,000. The District explains 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 District has already spent 3 hours time searching for the records. As a result, the District estimates a total of 10 hours for the search of the records.” The District “. . . estimates that it will take approximately 1 minute per page to complete its segregation, and potential redaction of the records sought in [the] request. As a result, the [District] estimates a total of 10 hours for segregation and redaction.” The District states, “6 hours for search plus 10 hours for segregation and redaction is a total of 16 hours multiplied by $25 per hour yields a fee estimate of $400. The actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process.” In its fee estimate, the District stated that it “. . . has already spent 3 hours time searching for the records. As a result, the District estimates a total of 10 hours for the search of the

Doreen Twiss SPR21/2776 Page 3 November 4, 2021 records.” Further in the estimate, the District stated that “6 hours for search plus 10 hours for segregation and redaction is a total of 16 hours . . .” Based on the District’s statements it is unclear the amount of time the District requires to search for the responsive records. It is additionally uncertain how the District requires 6 or 10 hours of search time, especially, where it appears it has already expended 3 hours to search for the 500 pages of records. The District must clarify these matters. Also, the District indicated in its estimate that it requires “1 minute per page to complete its segregation, and potential redaction of the records . . .[.]” Where the District estimates 1 minute to segregate and redact 500 pages of records, it is unclear how the District requires 10 hours to complete these tasks. The District must clarify this issue. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Conclusion Accordingly, the District 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Commonwealth Transparency