Laura H. Ortiz v. Lynn, City of - Public Schools (SPR 20220896)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 15, 2022 SPR22/0896 Charles Gallo, J.D. Compliance Officer Lynn Public Schools 100 Bennett Street Lynn, MA 01905 Dear Mr. Gallo: I have received your petition on behalf of the Lynn Public Schools (School) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the School furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On October 18, 2021, Ms. Ortiz requested 11 categories of records regarding food services from 2018 to 2021. For Items 3, 4, 5, 6, and 10, Ms. Ortiz requested: [3] Copy of all communication between the City of Lynn and/or Lynn Public School District/other to/from Chartwells and/or Chartwells K12 regarding any issues with the food services they provided and/or that was raised by LPS staff, students and/or parents. This request is not limited to [21] key words . . . . Note: For School Years 2021-2022, 2020-2021[,] 2019-2020 and 2018-2019. . . . [4] Copy of all communication between the City of Lynn and/or Lynn Public School District/other to/from Chartwells and/or Chartwells K12 Partner Revolution Foods regarding any issues with the food services they provided and/or that was raised by LPS staff, students and/or parents. This request is not limited to [21] key words. . . . Note: For School Years 2021-2022, 2020-2021[,] 2019-2020 and 2018-2019. . . . [5] Copy of all communication between the Lynn Public School District/other to/from City of Lynn regarding any issues with the food services in Lynn Public Schools served to staff and students and/or that was raised by LPS staff, students and/or parents. This request is not limited to [21] key words. . . . Note: For School Years 2021-2022, 2020-2021[,] 2019-2020 and 2018-2019. . . . [6] Copy of all communication between the Lynn Public School District/other to/from the Food Services Department regarding any issues with the food services in Lynn Public Schools served to staff and students. This request is not 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

Charles Gallo, J.D. SPR22/0896 Page 2 April 15, 2022 limited to [21] key words. . . . Note: For School Years 2021-2022, 2020-2021[,] 2019-2020 and 2018-2019. . . . [10] Copy of all communication between the Lynn Public School District/other to/from Madres de Lynn regarding any issues with the food services in Lynn Public Schools served to staff and students and/or that was raised by LPS staff, students and/or parents through Madres de Lynn. This request is not limited to [21] key words. . . . Note: For School Years 2021-2022, 2020-2021[,] 2019-2020 and 2018-2019. . . . On November 22, 2021, Ms. Ortiz modified her request to the following: Modification of To/From/CC/BCC X). LunchProgram mailing list**, @compass-use.com, northshorelaborcouncil@gmail.com Y) . . . . @lynnschools.org, . . . @lynnschools.org, . . . @lynnschools.org . . . ** Please note: Lunch Program being accessed while working in the Food Services Department, on this organizational Microsoft Outlook/other system, two of these individuals are head food service staff regardless if dually employed with any wholesale vendors, the correspondents are identified as . . . so these correspondent public records exist and were utilized from 2018-2021 Modification of keywords: “meal complaint”, “complaint”; “expired”; “spoiled”; “rotten”; “inedible”; “madres” Keeping last modification of timeframe (to be searched in separate batches to initiate a rolling records reasonable response all RAO’s are capable of): this school year 1st 2021-2022 so April 1 2021- October 27 2021, then Oct 1 2020- April 1 2021, then April 1 2020-Oct 1 2020, then Oct 1 2019-April 1 2020, then April 1 2019-Oct 1 2019, then Oct 1 2018-April 1 2019, and then Jan 1 2018- Oct 1 2018 . . . Previous appeals The request was the subject of previous appeals. See SPR21/2939 Determination of the -- Supervisor of Records (November 19, 2021); SPR21/3067 Determination of the Supervisor of Records (December 6, 2021); SPR21/3316 Determination of the Supervisor of Records (December 29, 2021); SPR21/3380 Determination of the Supervisor of Records (January 13, 2022); SPR22/0080 Determination of the Supervisor of Records (January 18, 2022); SPR22/0159 Determination of the Supervisor of Records (February 4, 2022); SPR22/303 Determination of the Supervisor of Records (February 22, 2022); and SPR22/0458 Determinations of the Supervisor of Records (March 11, 2022 and April 12, 2022). In my April 12th determination, I declined to reverse my findings in the March 11th determination.

Charles Gallo, J.D. SPR22/0896 Page 3 April 15, 2022 Petition to Assess Fees 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 (Supervisor) 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). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve an agency’s petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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).

Charles Gallo, J.D. SPR22/0896 Page 4 April 15, 2022 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). Conclusion The School submitted its petition on April 14, 2022, more than ten business days after receipt of the request. In light of the fact the School 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura Ortiz