Commonwealth Transparency v. Nahant, Town of - Public Schools (SPR 20212911)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 17, 2021 SPR21/2911 Tony Pierantozzi Superintendent of Schools Nahant Public Schools 290 Castle Road Nahant, MA 01908 Dear Superintendent Pierantozzi: I have received the petition of Commonwealth Transparency appealing the response of the Nahant 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 appeal; petition This request was the subject of a previous appeal and subsequent petition from the School. See SPR21/2730 Determination of the Supervisor of Records (November 2, 2021) and SPR21/2759 Determination of the Supervisor of Records (October 27, 2021). In my November 2nd determination, I directed the School to provide additional information regarding its fee estimate. The School provided a revised fee estimate on October 21, 2021. Unsatisfied with the School’s response, the requestor petitioned this office and this appeal, SPR21/2911, was opened as a result. Fee estimate – municipalities A municipality may assess a reasonable fee for the production of a public record except 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

Superintendent Tony Pierantozzi SPR21/2911 Page 2 November 17, 2021 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 21st fee estimate In its October 21, 2021 fee estimate, the School indicates that it is “. . . in possession of approximately 200 pages of public records requests responsive to your Request #1 from 2016 to present. These documents are both electronic and hard copy. 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 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 an unknown number of documents: approximately 50 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), 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 3,860. 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 2 hours of time searching for the records. As a result, the [School] estimates a total of 3 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 3 hours for segregation and redaction.” The School provides, “3 hours for search plus 3 hours for

Superintendent Tony Pierantozzi SPR21/2911 Page 3 November 17, 2021 segregation and redaction is a total of 6 hours. 6 hours multiplied by $25 per hour yields a fee estimate of $150.00. The actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process.” The School indicated in its estimate that “. . . it will take approximately thirty (30) seconds per email to read the email and determine whether it is responsive to the request[,]” and assesses 3 hours for search time. However, based on the School’s estimate, it is unclear the number of email records the School possesses. The School must clarify this issue. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). 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