Jessica Lambert v. Boston Preparatory Charter Public School (SPR 20212940)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 15, 2021 SPR21/2940 Tyler Martin Director of Finance Boston Preparatory Charter Public School 1286 Hyde Park Avenue Hyde Park, MA 02136 Dear Mr. Martin: I have received your petition on behalf of the Boston Preparatory Charter Public School (School) seeking a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(c), (d)(iv). As required by law, it is my understanding that the School furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). In a letter dated October 25, 2021, Jessica Lambert requested “…all emails and documents between any member of your staff and any person at the Massachusetts Charter Public School Association (including MCPSA).” 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 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 an agency’s petition to allow the agency 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. 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

Tyler Martin SPR21/2940 Page 2 November 15, 2021 The second prong of the test is whether the fee represents an actual and good faith representation by the agency 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) 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). Current Petition In its petition dated November 5, 2021, the School seeks “…a waiver of the statutory fee limit of $25 per hour pursuant to 950 CMR 32.06(4)(g) and (h).” Specifically, the School requests “…permission to charge a fee of $150 per hour for the production of documents.” The School notes “…this request is unlimited as to time, method of communication, or the employees of Boston Prep to which it could apply.” Further, “…a search for responsive documents will require a full-scale search of Boston Prep’s servers, and that Boston Prep lacks this capability. The company that manages Boston Prep’s servers can perform the necessary search and has provided [the School] a quote of 12 hours and $150 per hour to perform the requested search. Without this assistance, Boston Prep has no means of performing the necessary search.” The School contends that it “…has no means of identifying responsive documents within the extraordinary scope of the request submitted by [Ms. Lambert] without paying the company

Tyler Martin SPR21/2940 Page 3 November 15, 2021 that manages Boston Prep’s servers to perform the search. That company will not perform the search for less than $150 per hour, and expects that it will require 12 hours to conduct the search. As such, Boston Prep cannot prudently complete the request without the requested fee. The fee is reasonable is that Boston Prep does not have any employee capable of performing the necessary task, and the fee is set by a third party. Because Boston Prep has not set the fee, the fee is also not designed to limit, deter or prevent access to requested public records. Rather, payment of the fee is the only manner in which responsive documents can be identified.” Conclusion Please be advised that the School cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Accordingly, I find the School has not met its burden to assess a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jessica Lambert