Will Marmion v. Ipswich, Town of - School Department (SPR 20212841)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2021 SPR21/2841 Dr. Beverly Hegedus Director of Pupil Personnel Services Office of the Superintendent Ipswich Public Schools 1 Lord Square Ipswich, MA 01938 Dear Dr. Hegedus: I have received the petition of Will Marmion, Esq. appealing the response of the Ipswich Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 27, 2021, Ashley Rossiter requested emails pertaining to an identified individual. The School provided a response on June 14, 2021. Unsatisfied with the School’s response, Attorney Marmion, on behalf of Ms. Rossiter, petitioned this office and this appeal, SPR21/2841, was opened as a result. 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); 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. 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

Dr. Beverly Hegedus SPR21/2841 Page 2 November 9, 2021 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 June 14th Response On June 14, 2021, the School provided a fee estimate of $812.50 explaining, “following up on [the School’s] email to [Ms. Rossiter] last week regarding the redacting and copying fees for the documents [Ms. Rossiter] requested. At that time, [the School] included the MA Records Law citation allowing for charges for time spent searching for, compiling, segregating, redacting and reproducing a requested record.” In its June 14th response, the Department stated it had been able to compute the final costs in the amount below: Costs: Redacting- 29 hours x $25 = $725 Copying- 1,750 pages x .05 = $ 87.50 Total = $812.50 On September 17, 2021, Ms. Rossiter requested “to come in [and] view the records. If they are set aside like [the School] say[s] there should be no issues with me coming and reading them and perhaps then we can narrow the scope.” Ms. Rossiter further explained she “would not be intending to leave with any documents and would be happy if any one [from the School] would like to sit there with me.”

Dr. Beverly Hegedus SPR21/2841 Page 3 November 9, 2021 Based on the School’s June 14th response, it is unclear why the School requires the amount of time listed above to produce the requested records. The School must provide further information on the details regarding the tasks involved, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The School must clarify these matters, including the time that is needed to perform segregation and redaction as required by law. This office continues to encourage Attorney Marmion 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 Accordingly, the School is ordered to provide Attorney Marmion with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Will Marmion, Esq.