Commonwealth Transparency v. Millbury, Town of - Public Schools (SPR 20212796)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 8, 2021 SPR21/2796 Kerri Sundeen Millbury Public Schools 12 Martin Street Millbury, MA 01527 Dear Ms. Sundeen: I have received the petition of Commonwealth Transparency appealing the response of the Millbury 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 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 School. See SPR21/2787 Determination of the Supervisor of Records (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 the School may assess a fee for segregation and redaction. The School provided the requestor with a fee estimate on October 25, 2021. Objecting to the fees, the requestor petitioned this office and this appeal, SPR21/2796, 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 reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents 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

Kerri Sundeen SPR21/2796 Page 2 November 8, 2021 ($.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 25th fee estimate In its October 25, 2021 fee estimate, the School states that it “is in possession of approximately 787 pages of public records requests responsive to your Request #1. With 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 787 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. Lastly, the [School] is in possession of approximately 787 pages of ‘responses, appeals, fee requests and responsive records resulting from the requests.’” The School explains that “[e]ach of the records . . . must also be reviewed to determine if any exemptions or privileges apply.” The School cites Exemptions (a) and (c). The School 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 record requested exceeds $25 per hour, it will cap its hourly rate at $25 an hour. The School states that according to the 2020 Census data, its population is 13,831. The School 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 [School] has already spent three hours of time searching for the records. As a result, the [School] estimates a total of three hours for search of the records.” The School “. . . 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 [School] estimates a total of 13.1 hours for segregation and redaction. Three hours for search plus 13.1 hours for segregation and redaction is a total of 16.1 hours. 16.1 hours multiplied by $25 per hour yields a fee estimate of $402.50.” As noted above, the School was previously approved to assess a fee for segregation and redaction.

Kerri Sundeen SPR21/2796 Page 3 November 8, 2021 This office encourages the requestor 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 the records sought more efficiently and affordably). Conclusion As set forth above, I find the School has met its burden in responding to the requestor’s request at this time. Any revision to the request would result in the requirement to issue a revised estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Commonwealth Transparency