Zack Grenier v. Greater Lowell Technical High School (SPR 20221280)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 7, 2022 SPR22/1280 Kevin S. Freytag, Esq. Murphy, Hesse, Toomey & Lehane LLP 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Freytag: On June 1, 2022, this office received your petition on behalf of the Greater Lowell Technical High School (School) requesting permission to charge for time spent segregating or redacting responsive records under G. L. c. 66, § 10 (d)(iv). As required by law, the School furnished a copy of its petition to the requestor, Zack Grenier. G. L. c. 66, § 10(c). On May 17, 2022, Mr. Grenier requested “[a]ll site-specific safety manuals and plans prepared by: 1. Consigli Construction, the General Contractor and/or 2. Any/All subcontractors who are participating in the Greater Lowell Technical High School renovation project that was completed in 2016.” Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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 a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 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

Kevin S. Freytag, Esq. SPR22/1280 Page 2 June 7, 2022 10(d)(iv). It is my determination that the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 (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) Current Petition In its June 1st petition, the School “…petitions the Supervisor to be permitted to charge $25 per hour to search for and possibly segregate and redact responsive records.” The School notes that “Greater Lowell may be in possession of records that are responsive to the request contained in seven (7) bankers’ boxes full of documents related to the construction project referenced in the request. Greater Lowell estimates that it will take approximately seven (7) hours to review those records to determine if they are responsive to the request. The records may also need to be redacted in accordance with various exemptions under the Public Records Law including those related to privacy and those related to the security or safety of persons or buildings.” The School states, “[g]enerally, records access officer 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 the record

Kevin S. Freytag, Esq. SPR22/1280 Page 3 June 7, 2022 requested. In this case, Michael Knight, the School Business Administrator is the lowest paid employee capable of searching for and reviewing responsive records. Mr. Knight’s effective hourly wage rate exceeds $25 per hour. Nevertheless, Greater Lowell will only charge $25 per hour for the search and possible segregation and redaction of responsive records.” Although the School states, “[t]he records may also need to be redacted in accordance with various exemptions under the Public Records Law”, it has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information. Conclusion I find the School has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the School from charging for segregation and redaction that is required by law. When preparing a fee estimate for the provision of the requested records, the School is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The School must provide a response to Mr. Grenier within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Sincerely, Rebecca S. Murray Supervisor of Records cc: Zack Grenier Jill Davis