Commonwealth Transparency v. Alma del Mar Charter School (SPR 20212904)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 16, 2021 SPR21/2904 Emily Darrow Alma del Mar Charter School 515 Belleville Ave New Bedford, MA 02746 Dear Ms. Darrow: I have received the petition of Commonwealth Transparency appealing the response of the Alma del Mar Charter School (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 SPR21/2834 Determination of the Supervisor of Records (November 3, 2021). In my November 3rd 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 the requestor with a fee estimate on October 27, 2021. Objecting to the fees, the requestor petitioned this office and this appeal, SPR21/2904, 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

Emily Darrow SPR21/2904 Page 2 November 16, 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 School’s October 27th fee estimate In its October 27, 2021 fee estimate, the School states that it “. . . is continuing to search to identify the number of records responsive to your Request #1. With respect to your Requests # 2 & 3, the School is in the process of searching its email system for the words ‘public records’ and/or ‘FOIA,’ which it believes will generate several hundred documents that 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 is also continuing to search to identify the number of ‘responses, appeals, fee requests and responsive records resulting from the requests’ in its possession.” 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), as well as the attorney-client privilege. 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 797. 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 well over two hours of time searching for the records. As a result, the School estimates at least fifteen hours to search for the records, but expressly reserves the right to revise this estimate as it processes the request. The School estimates that it will take approximately 1 minute per page to complete its segregation, and potential redaction of the records sought in your request. Given the expansive nature of the request, the School is still in the process of identifying the number of responsive documents, and the number of pages that will be generated, but reasonably anticipates the number to be in the thousands of pages, particularly given the number

Emily Darrow SPR21/2904 Page 3 November 16, 2021 of records involving minor individuals that are anticipated to be involved. As a result, the School estimates a total of at least 75 hours for segregation and redaction, but expressly reserves the right to revise this estimate as it processes the request.” The School provides, “[f]ifteen hours for search plus 75 hours for segregation and redaction is a total of 90 hours. 90 hours multiplied by $25 per hour yields a fee estimate of $2,250. Please note that the actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process. . . . Please be advised that your fee estimate may be reduced if you narrow the scope of your request (i.e. the period of time for the records you seek).” Although the School states that it requires “at least fifteen hours to search for the records[,] [plus a total of] 75 hours for segregation and redaction” to produce responsive records, it is unclear the number of records the School is looking to segregate and/or redact and the number of pages there are. The School must clarify this issue. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). 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 Accordingly, the School 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