Jessica Lambert v. Boston Renaissance Charter Public School (SPR 20212934)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 12, 2021 SPR21/2934 Dorothy Warwick Records Access Officer Boston Renaissance Charter Public School 1415 Hyde Park Avenue Boston, MA 02136 Dear Ms. Warwick: I have received your petition on behalf of the Boston Renaissance Charter Public School (School) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the School furnished a copy of this petition to the requestor. Id. In a request dated October 25, 2021, Jessica Lambert requested: [1] All emails and documents between you or any member of your staff and any person at the Massachusetts Charter Public School Association (including MCPSA); and [2] The publicly available information regarding your total compensation for calendar year 2020. Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; 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

Dorothy Warwick SPR21/2934 Page 2 November 12, 2021 (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Extension of Time to Produce Responsive Records In its November 4, 2021 petition, the School indicates that, “[Ms. Lambert] has made a large request for a significant amount of emails. This instant request will take a significant amount of time to respond to given the volume of records requested. As a result, it is not possible to respond within 10 business days. Therefore, [the School] hereby petitions for an extension of time to respond given that the scope of redaction required to prevent unlawful disclosure is significant. The [School] will be unable to produce the records during normal business hours of operation without an extension in light of the size of the request and the repeated requests within a short time period. Pursuant to M.G.L. c. 66, section 10(c), the District requests an additional 30 business days beyond the time specified under the statute (25 business days) – for a total of 55 business days from the date of receipt payment for the work.” I find in light of the need to collect and segregate the request, as well as the capacity of the School to produce the request without an extension, the School has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The School is granted an extension of 30 business days. Please note the time may begin to run once the School receives payment. G. L. c. 66, § 10(c). Petition to Assess Fees 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 (Supervisor) 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). In rendering such a decision, the Supervisor is required to consider the following: a) the

Dorothy Warwick SPR21/2934 Page 3 November 12, 2021 public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g).

Dorothy Warwick SPR21/2934 Page 4 November 12, 2021 Current Petition to Assess Fees In its November 4, 2021 petition, the School requests that it be “…permitted to charge a fee to produce [the] records because the records will need to be redacted…Due to the broad nature of the request, many of the responsive documents may constitute members only information that may fall within Exemption (g), which applies to trade secrets, as the resources that staff members received from the MCPSA were paid for by member dues, and Mystic Valley is not a member of the MCPSA.” Although the School states that, “…many of the responsive documents may constitute members only information that may fall within Exemption (g),” it has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information. Conclusion With respect to the School’s petition to extend the time to respond to Ms. Lambert’s request, I find the School has established good cause for a time extension of 30 business days as described above. With respect to the School’s petition to assess fees, I find the School has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the School from charging for segregation and redaction that is required by law. The School must provide a response to Ms. Lambert within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Lambert may appeal the School’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jessica Lambert