Debbie Barnes v. Billerica, Town of - Public Schools (SPR 20221343)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 15, 2022 SPR22/1343 Director Robin Hulsoor Director of Finance and Operations Billerica Public Schools 365 Boston Road Billerica, MA 01821 Dear Director Hulsoor: I have received your petition on behalf of the Billerica Public Schools (School) requesting approval to assess fees for costs associated with responding to a public records request. 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(c). In this matter, Debbie Barnes requested ten (10) categories of records concerning the School. 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 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

Dir. Robin Hulsoor SPR22/1343 Page 2 June 15, 2022 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 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 petition dated June 8, 2022, the School states, “I am hereby submitting a petition pursuant to MGL Chapter 66, Section 10(c) to the Supervisor of Public Records, in light of a total of (10) public records requests made by the same requestor, Ms. Debbie Barnes, within the past three (3) weeks.” The School notes that “[t]he time necessary to furnish records for some of the requests individually has not exceeded two hours. Billerica did not charge for the time spent responding to the first two (2) requests submitted by Ms. Barnes. Under the public records law, because Billerica has a population in excess of 20,000 residents, it cannot ordinarily charge a fee for the first two hours of time in responding to a public records request. However, the aggregate amount of time spent in responding to the first two (2) requests, and the time that will be spent responding to the eight (8) recent request as of June 2, 2022, will have caused the [School] to expend well in excess of two (2) hours of time responding to Ms. Barnes requests submitted within the past three weeks.”

Dir. Robin Hulsoor SPR22/1343 Page 3 June 15, 2022 The School indicates that their “….petition does not seek to relieve the [School] of the burden of producing records. Rather, Billerica Public Schools petitions the SPR to relieve it of the requirement to waive the first two hours of retrieval time for the response to the requests, and any subsequent requests that Ms. Barnes may submit for the remainder of the current fiscal year.” The School requests relief outside the scope of statutory authority given to the Supervisor under the Public Records Law. See G. L. c. 66, § 10(d)(iv); G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). I encourage the parties to communicate further to enable the School to provide records in an efficient and affordable manner. Conclusion Accordingly, I will consider this petition closed. Any fee estimate by the School must be in compliance with the Public Records Law and its Regulations. Ms. Barnes may appeal the substantive nature of the School’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Debbie Barnes