Christina Aurilio-O'Shea v. Billerica, Town of - Public Schools (SPR 20213359)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 6, 2022 SPR21/3359 Robin Hulsoor Director of Finance and Operations Records Access Officer Billerica Public Schools 365 Boston Road Billerica, MA 01821 Dear Robin Hulsoor: I have received the petition of Christina Aurilio-O’Shea appealing the response of the Billerica Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 10, 2021, Ms. Aurilio requested “copies of public records of the Covid-19 plan that was submitted to the state to get Covid-19 funds for all Billerica Public Schools. [Including] and all emails with the key words Covid-19 plan, mask mandate, and vaccine.” On November 18, 2021, Ms. Aurilio clarified that she is “requesting the last 6 months” of emails. The School responded on December 3, 2021, providing a fee estimate, and stating that “all covid plan documents are on the BPS website.” 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 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. Att’y 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. 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 Hulsoor SPR21/3359 Page 2 January 6, 2022 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 3rd Response In its December 3, 2021 response, the School refers Ms. Aurilio to a website containing links to numerous responsive records, and provides a fee estimate for providing responsive emails. With its fee estimate, the School provides the following table: Time required for IT Director to perform individual search, 4 hours compile emails and reproduce records Time required segregating and redacting emails for private 8 hours student or staff information or HIPPA violations as required by law. See student record statute G.L.c. 71 34D, 34E First 2 hours – no fee assessed (2 hours) Staff time for fee assessment 10 hours Maximum allowed hourly rate under Public Records Law $25.00 Fee required for records response $250.00

Robin Hulsoor SPR21/3359 Page 3 January 6, 2022 Based on the School’s fee estimate, it is unclear why it requires a total of 12 hours of search and segregation time. The School must provide further details regarding the tasks involved and what each task entails. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, 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). Consequently, the School must explain whether its hourly rate is that of the lowest paid employee with the necessary skill. For the reasons discussed above, I find the School must revise its fee estimate or provide further explanation of how the fee assessed is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the School is ordered to provide Ms. Aurilio 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 this response to this office at pre@sec.state.ma.us. Sincerely, ··.· .' ·. - - - . ~ Rebecca S. Murray Supervisor of Records cc: Christina Aurilio-O’Shea