Dylan Lambert v. Leicester, Town of - Public Schools (SPR 20220046)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 24, 2022 SPR22/0046 Dr. Marilyn Tencza Superintendent Leicester Public Schools 3 Washburn Square Leicester, MA 01524 Dear Dr. Tencza: I have received the petition of Dylan Lambert appealing the response of the Leicester 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, Mr. Lambert requested the following records for the period of time 11/10/2020 to 11/10/2021: 1. Any invoices relating to services rendered to the school department by outside contractors for facilities maintenance and repairs … including costs and any record of payment made on those invoices. 2. emails and text messages between yourself, the finance director, facilities director, and members of the school board including the chair regarding the invoices requested under point 1. 3. Any record of discussions between any member of district central office staff or school Committee members and other boards … regarding invoices related to the school, including any incidents that were of public profile (i.e. were of note by news organizations) and how those incidents were handled … Prior Appeals This request was the subject of previous appeals. See SPR21/3105 Determination of the Supervisor of Records (November 30, 2021) and SPR21/3261 Determination of the Supervisor of Records (December 28, 2021). The School responded on January 7, 2022. Unsatisfied with the response, Mr. Lambert petitioned this office and this appeal, SPR22/0046, was opened as a result. Fees -Municipalities If there are any fees associated with a response a written, good faith estimate must be · 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

Marilyn Tencza SPR22/0046 Page 2 January 24, 2022 provided. G. L. c. 66, § 10(b)(viii); -se-e -a-ls-o 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 how 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). The School’s Fee Estimates The School provided a response dated January 7, 2022 and incorporated its December 14, 2021 response. The School responded to each request individually as follows: Request 1 The School advised the cost for search is 2 hours at $25.00 per hour, for a total of $50 and segregation and redaction (if needed) time by the lowest-paid Town employee capable of performing this task (i .e., the Superintendent and/or legal counsel): one hour at $25.00 per hour, for a total of $25.00 for a total fee of $75.00 Request 2 The School advised that the search time by the lowest-paid Town employee is estimated at 3-4 hours at $25.00 per hour, for a total of $75.00-$100 and segregation and redaction (if needed) time by the lowest-paid Town employee capable of performing this task: one hour at $25.00 per hour, for a total of $25.00 for a subtotal: $100-$125.00 (for purposes of this response, $100).

Marilyn Tencza SPR22/0046 Page 3 January 24, 2022 Request 3 In its response, the School estimated search time at 8 hours at $25.00 per hour, for a total of $200 and segregation and redaction at three hours at $25.00 per hour, for a total of $75.00 for a subtotal: $275.00. The School estimated the total cost at $450.00. Current Appeal In his appeal, Mr. Lambert contests that fees cannot be charged because the School provided the fee estimate response later than ten days. Upon review of the file, Mr. Lambert sent his request at 8:36 pm on November 10th. Therefore, the appeal would have been received on November 11th, however, November 11 was a holiday, thus, the appeal was received on November 12th. The Thanksgiving holiday also occurred during this time. The School responded on November 29, 2021. Consequently, the School’s response is timely. Although the School has indicated that an estimated 13 hours is necessary for search and 5 hours necessary for segregation and redaction and also advised that redaction will need to occur pursuant to the attorney-client privilege, the School must also must explain what tasks are necessary to provide the records. Additionally, it is also not clear how many minutes per page the School requires to review the responsive records. The School must clarify these issues. I encourage Mr. Lambert and the School to communicate further in order to facilitate producing records efficiently and affordably. Mr. Lambert may wish to include applicable time periods or additional factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The School must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). For the reasons discussed above, I find the School must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the School is ordered to provide Mr. Lambert with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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. .

Marilyn Tencza SPR22/0046 Page 4 January 24, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Dylan Lambert Kimberly A. Rozak, Esq.