Craig Haller v. Department of Elementary and Secondary Education (SPR 20220453)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 7, 2022 SPR22/0453 Helene Bettencourt Records Access Officer Department of Elementary and Secondary Education 75 Pleasant Street Malden, MA 02148 Dear Ms. Bettencourt: I have received the petition of Craig Haller appealing the response of the Department of Elementary and Secondary Education (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 10, 2022, Mr. Haller requested, “all ‘Letter of Finding’ documents from PRS concerning the Public Schools of Brookline from September 1, 2018 to present day.” The Department provided a response and fee estimate on February 23, 2022. Unsatisfied with the Department’s response, Mr. Haller petitioned this office and this appeal was opened as a result. Fee Estimates – Agencies 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. An agency 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). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies 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. A fee shall not be assessed for time spent segregating or redacting 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

Helene Bettencourt SPR22/0453 Page 2 March 7, 2022 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)(ii); 950 C.M.R. -- 32.06(4). 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s February 23rd Fee Estimate On February 23, 2022, the Department stated: …the Department will charge for the records you have requested. The Department charges $25.00/hr when the labor of “searching for” and “segregating” public records requires more than four hours … The Department estimates that the records you requested will require approximately 4 hours to search for, to segregate, and to prepare for production since some of the records have already been produced…If you wish us to continue processing your request, please send a check…in the amount of $100.00. Mr. Haller stated in response: …I assume less than four hours [of work means that] there is no charge. Then you state: “The Department estimates that the records…will require approximately 4 hours [of work]…” So I would assume that there is approximately no charge. Then you say you require a check for $100.00…wouldn’t that mean that you expect 8 hours of work? That same day, the Department stated, “About 40% of the letters have already been prepared and redacted so those would be free of charge. The remaining letters would take about 4 hours to pull, prepare, redact, and review, hence the $100 estimate.” Current Appeal In his current appeal, Mr. Haller stated: …it appears that the first hours that are not charged are being applied to copies

Helene Bettencourt SPR22/0453 Page 3 March 7, 2022 previously redacted and stored records that simply need to be emailed to me. And that I am being charged for any and all time needed for those parts of the request that have not been previously prepared. It is unclear how the Department arrived at its estimate of four hours to complete the search for and segregation and redaction of the records. Specifically, the Department has not identified the tasks involved in the search for and segregation and redaction of the records. Further, it is unclear whether the Department is charging for tasks relating to the records that had already been compiled and redacted as indicated by the Department on February 23rd. The Department must clarify these points. Conclusion Accordingly, the Department is ordered to provide Mr. Haller with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Craig Haller