Commonwealth Transparency v. Fairhaven, Town of - Public Schools (SPR 20212907)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 17, 2021 SPR21/2907 Melissa Bouchard Executive Assistant to the Superintendent Town of Fairhaven Public Schools 128 Washington Street Fairhaven, MA 02719 Dear Ms. Bouchard: I have received the petition of Commonwealth Transparency appealing the response of the Town of Fairhaven 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, Commonwealth Transparency requested: For the time period January 1, 2016 through the date you respond with the responsive documents, please provide the following: 1. Any and all public records requests seeking public records of your 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; and 4. All responses, appeals, fee requests and responsive records resulting from the requests in #1 above. The School provided an October 29, 2021 response and fee estimate totaling $625.00. As a result of the fee estimate, Commonwealth Transparency petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In its November 2, 2021 petition, Commonwealth Transparency objects to the School’s fee estimate entirely, stating, “[t]he response was not made timely, as the response must have been made by the COB o[n] Tuesday, October 26, 2021 which was the 10th business day after receiving the request. As such the RAO/School/District is prohibited from charging fees for this public records request.” In addition, Commonwealth Transparency objects to the School’s invoking of the 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

Melissa Bouchard SPR21/2907 Page 2 November 17, 2021 attorney-client privilege and Exemption (c) to segregate and redact information from the records. Previous petition The request was the subject of a previous petition. See SPR21/2760 Determination of the Supervisor (October 27, 2021). In my October 27th determination, I found that the School was permitted to assess fees for segregation and redaction, and assess an hourly rate of $75. Fee estimate – municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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). G. L. c. 66, § 10(e) In its November 2nd petition, Commonwealth Transparency contends that the School did not provide a response with ten (10) days of receiving the request. G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Commonwealth Transparency submitted a public records request via email at 9:43 PM on October 12, 2021, and the School provided a response on October 29, 2021, I find it is unclear whether the School complied with G. L. c. 66, § 10(e). Specifically, the School must demonstrate whether it provided a response to Commonwealth Transparency’s request within 10 business days of receipt of the request under G. L. c. 66, § 10(b).

Melissa Bouchard SPR21/2907 Page 3 November 17, 2021 Conclusion Accordingly, the School is ordered to provide Commonwealth Transparency with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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