Rebekah Thomson v. Martha's Vineyard Public Schools (SPR 20220836)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 25, 2022 SPR22/0836 Matthew D’Andrea Superintendent / Records Access Officer Martha’s Vineyard Public Schools 4 Vine Street Vineyard Haven, MA 02568 Dear Superintendent D’Andrea: I have received the petition of Rebekah Thomson appealing the response of the Martha’s Vineyard Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 24, 2022, Ms. Thomson, on behalf of “The Field Fund,” requested various categories of emails from January 1, 2021 to June 30, 2021. The School replied on April 6, 2022, providing a fee estimate. Objecting to the fees, Ms. Thomson appealed, and this case 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 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. 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. 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

Matthew D’Andrea SPR22/0836 Page 2 April 25, 2022 Fee Estimates 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 2 (two) 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 April 6th Fee Estimate In its April 6, 2022 response, the School states that it “conducted an initial search of the MVRHS email accounts of the specified individuals, for the period January 1, 2021 through June 30, 2021” and that “the search returned approximately 1,042 emails.” The School explains that it will need to redact responsive records pursuant to Exemption (a) of the Public Records Law, and the attorney-client privilege. As part of its fee estimate, the School also states the following: The District employees and officials spent a total of at least 11 hours of time searching for information regarding records in response to [Ms. Thomas’] previous requests in this series without a fee, and [the School has] spent at least 2 additional hours of time responding to this follow up request. This time has not yet been charged to [Ms. Thomas], but will be incorporated into the fees set forth below should [she] wish to proceed with [her] request. In an email to this office on April 12, 2022, the School further indicated that it had previously provided “The Field Fund” with 78 pages of redacted emails in response to an earlier request. The School is advised that, under the Public Records Access Regulations, “if fees are being assessed, a records access officer shall provide a written, itemized, good faith estimate of any fees that may be charged to produce the records prior to complying with a public records request.” 950 C.M.R. 32.07 (2)(b) (emphasis added). Accordingly, it is unclear how the School can assess a fee for time spent on previous records requests.

Matthew D’Andrea SPR22/0836 Page 3 April 25, 2022 In addition, the School states the following: Based on the District’s experience with responding to public records requests and considering the applicable exemptions, the time needed for redaction, and the number of records, I estimate that it will take approximately five (5) minutes per email to fully search for, compile, review, segregate, redact, and reproduce each record. For the approximately 1,042 emails the District has identified as potentially responsive to [the] request, it would take an estimated 87 hours to complete the District’s search for, compilation, review, segregation, redaction and reproduction of those records. Including the at least 13 hours already spent on your series of requests and factoring in the 2 free hours of work, that leaves 98 hours subject to a fee, for a total initial fee of Two Thousand Four Hundred Fifty Dollars ($2,450.00). Based on the School’s response, it is unclear why the School requires five minutes per email to review the responsive records. The School must provide further details regarding the contents of the records and why it would take five minutes to review each one. For the reasons discussed above, I find the School must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Based on information submitted with Ms. Thomson’s appeal petition, and prior communications with this office, I understand that she has previously attempted to narrow the scope of her request. This office encourages the School and Ms. Thomson to communicate directly in order 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 the records sought more efficiently and affordably). Conclusion Accordingly, the School is ordered to provide Ms. Thomson with a response to her 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.

Matthew D’Andrea SPR22/0836 Page 4 April 25, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Rebekah Thomson