Commonwealth Transparency v. Swampscott, Town of - Public Schools (SPR 20212896)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2021 SPR21/2896 Pamela R. H. Angelakis Superintendent Records Access Officer Swampscott Public Schools 207 Forest Avenue Swampscott, MA 01907 Dear Superintendent Angelakis: I have received the petition of OpenCommonwealth.org appealing the response of the Swampscott 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, OpenCommonwealth.org requested the following: For the time period January 1, 2016 through the date [the School] respond[s] with the responsive documents, please provide 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 SPR21/2844 Supervisor of Records Determination (November 2, 2021). In my November 2nd 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 OpenCommonwealth.org with a fee estimate on October 26, 2021. Objecting to the fees, OpenCommonwealth.org appealed, and this case was opened as a result. 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

Pamela R. H. Angelakis SPR21/2896 Page 2 November 9, 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 26th Fee Estimate In its October 26, 2021 fee estimate, the School states the following:

Pamela R. H. Angelakis SPR21/2896 Page 3 November 9, 2021 The [School] is in possession of approximately 100 pages of public records requests responsive to . . . Request #1. With respect to . . . Requests # 2 & 3, the . . . [School’s] search generated 29 emails which may be responsive to [the] request and will need to review each email to ensure responsiveness. The [School] is not aware of any text messages responsive to [the] request. Lastly, the [School] is in possession of approximately 29 pages of “responses, appeals, fee requests and responsive records resulting from the requests.” The School further explains the following regarding the calculation of its fee estimate: According to the 2020 Census data, the population of Swampscott is 15,227. 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. . . . In this case, 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 five (5) hours searching for the records. As a result, the [School] estimates a total of thirty-four (34) hours for search of the records. [sic] . . . The [School] estimate 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 one (1) hours for segregation and redaction. . . . Five (5) hours for search plus one (1) hour for segregation and redaction is a total of six (6) hours. Six (6) multiplied by $25 per hour yields a fee estimate of $150.00. As noted above, the School was previously approved to assess a fee for segregation and redaction. Where the School has estimated that it will need to review 29 emails for responsiveness and that it will take approximately 30 seconds per email, it is unclear how the School arrived at a total of 5 hours for searching the records. Based on the School’s response, it is unclear how much time the School requires for search, segregation, and redaction. The School must clarify these matters. This office encourages OpenCommonwealth.org 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).

Pamela R. H. Angelakis SPR21/2896 Page 4 November 9, 2021 Conclusion Accordingly, the School is ordered to provide OpenCommonwealth.org with a response to the 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: OpenCommonwealth.org