Ben Tobin v. Department of Elementary and Secondary Education (SPR 20221453)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 6, 2022 SPR22/1453 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 Ben Tobin 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 June 7, 2022, Mr. Tobin requested “all documents connected to PRS 7111 around the department’s lack of policies and procedures per IDEA part B including, but not limited to, emails, text messages, voice mails, and social media posts.” The Department responded on June 15, 2022, providing a fee estimate. Objecting to the fees, Mr. Tobin 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 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 SPR22/1453 Page 2 July 6, 2022 custodian must provide the responsive records. Fee Estimates 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 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). The Department’s June 15th Fee Estimate In its June 15, 2022 response, the Department states that “the Department has identified approximately 1200 email communications that respond to this request. Over 400 such communications were located in the inboxes of attorneys who worked on this case.” The Department indicates that it will assess fees for time spent segregating and redacting the responsive emails under the attorney-client privilege. The Department also indicates that it will provide “the first four hours of labor without fees” and will charge $25/hour thereafter. In addition, the Department provides a detailed list of the number of responsive records it possesses for each employee, and states the following: On a good faith basis, the Department estimates that review of 1200 email, not including attachments or related documents, will require 80 hours of staff time, including review from two attorneys. With first four hours of review time provided free of charge, the Department estimates the costs of production will total at least $1900. Based on the Department’s response, it is unclear why the Department requires the amount of time indicated, approximately 4 minutes per email, in order to review and redact the responsive records. The Department must provide further details regarding the contents of the records and why it would take 4 minutes to review each one. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d).

Helene Bettencourt SPR22/1453 Page 3 July 6, 2022 Additionally, based on the Department’s response, and subsequent correspondence from both Mr. Tobin and the Department, I understand that both parties may be willing to narrow the scope of the request. This office encourages Mr. Tobin and the Department to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency 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 agency to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion Accordingly, the Department is ordered to provide Mr. Tobin with a response to his 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. Sincerely, ' .. ,,'.' · . ~ - . . Rebecca S. Murray Supervisor of Records cc: Ben Tobin