Commonwealth Transparency v. North Middlesex Regional School District (SPR 20213258)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 27, 2021 SPR21/3258 Robin Eibye Records Access Officer North Middlesex Regional School District 66 Brookline Street Townsend, MA 01469 Dear Ms. Eibye: I have received the petition of Commonwealth Transparency appealing the response of the North Middlesex Regional School District (District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 4, 2021, Commonwealth Transparency requested the following: For the time period December 1, 2020 through December 13, 2021, 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. 4. All responses, appeals, fee requests and responsive records resulting from the requests in #1 above. The School provided Commonwealth Transparency with a fee estimate on December 14, 2021. Objecting to the fees, Commonwealth Transparency petitioned this office and this appeal, SPR21/3258, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical 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

Robin Eibye, RAO SPR21/3258 Page 2 December 27, 2021 form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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) 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 December 14th Fee Estimate In its December 14, 2021 fee estimate, the School states that it “possesses records responsive to [Commonwealth Transparency’s] request. There are approximately 2,909 documents that fall within [Commonwealth Transparency’s] search parameters. The good faith fee estimate associated with the compilation, segregation, review, possible redaction, and production of these records is as follows:

Robin Eibye, RAO SPR21/3258 Page 3 December 27, 2021 Item Estimated Time Rate Estimated Cost Compilation and 12 hours $75.00 per hour $900.00 segregation time Review and redaction 48 hours, 48 minutes $75.00 per hour $3,636.25 time Total estimated cost 60 hours, 48 minutes $75.00 per hour $4,536.25 The School goes on to explain that it “estimates it will require an additional ten (10) hours for its IT Department to compile and segregate the responsive documents as it needs to find each responsive e-mail on the server, export the e-mails and attachments from the server into a format that it can be reviewed and redacted.” The School further explains, “[t]he estimated time for the review and redaction time is based on forty-eight (48) hours and forty-eight (48) minutes spent reviewing and redacting the responsive documents. The [School] estimates that because of the amount of information exempt under G.L. c. 4, §7(26) will take an average of one to one and a half (1 – 1.5) minutes to review and redact each page. This number is based on the need to carefully read each page, make the necessary determinations regarding whether the record contains exempt information, redact any confidential information contained in the records if found, and the possibility that other individuals may need to be consulted throughout this process. Assuming that each page will take an average of 1 – 1.5 minutes to review.” The School cites Exemption (c) and Attorney-client privilege for redaction of responsive records. Lastly, the School estimated it would take “twenty-five (25) business days to be the minimum reasonable timeframe for the [School] to produce the requested records to [Commonwealth Transparency]. Once [Commonwealth Transparency has] paid the above good faith fee estimate in full, the [School] will begin to process your request.” Based on the December 14th fee estimate above, the School has estimated 60.48 hours multiplied by $75 per hour which yields a fee estimate of $4536.52. It is unclear how the School arrived at a total of $4,536.25 as a fee estimate to produce records. As mentioned above, 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). It is unclear if the School can assess a fee for time spent segregating or redacting records under Exemption (c). Under the Public Records Law, 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. G. L. c. 66, § 10(d)(iii). However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). Consequently, the School must explain whether its hourly rate is that of the lowest paid employee with the necessary skill. Additionally,

Robin Eibye, RAO SPR21/3258 Page 4 December 27, 2021 where the School has not submitted a petition under G. L. c. 66, § 10(d)(iv), to charge in excess of $25 per hour, I find the School may not assess an hourly rate of $75.00. This office continues to encourage Commonwealth Transparency 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 records sought more efficiently and affordably). Conclusion Accordingly, the School is ordered to provide Commonwealth Transparency with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Commonwealth Transparency