Commonwealth Transparency v. North Middlesex Regional School District (SPR 20213360)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 11, 2022 SPR21/3360 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. Previous appeal This request was the subject of previous appeal. See SPR21/3258 Determination of the Supervisor of Records (December 27, 2021). The District provided a response on December 28, 2021. Unsatisfied with the District’s response, Commonwealth Transparency petitioned this office and this appeal, SPR21/3360, was opened as a result. 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 SPR21/3360 Page 2 January 11, 2022 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. 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 District’s December 28th Response In its December 28, 2021 response, the District stated that in its “December 14, 2021 fee estimate, and known by Open Commonwealth and SPR, the District received permission from

Robin Eibye, RAO SPR21/3360 Page 3 January 11, 2022 SPR on October 25, 2021, to assess fees for segregating and redacting records responsive to this request at a rate of no more than $75.00 per hour. See SPR21/2722 (enclosed). Based on the approval of the fee petition, the District’s fee estimate is as follows below.” The District explained the December 28th response was pertaining to “an appeal by the requestor, Open Commonwealth, regarding a fee estimate the District provided on December 14, 2021. The fee estimate was in response to a request that originated on October 12, 2021, of which the requestor narrowed the timeframe of the request on December 4, 2021.” It is unclear if the District submitted a petition within ten business days after receipt of Commonwealth Transparency’s narrowed December 4, 2021 request. In light of the fact the District has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(g). 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). This office continues to encourage Commonwealth Transparency and the District 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 District 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 Jennifer F. King, Esq., Valerio, Dominello, & Hillman, LLC.