William Garrity v. Pittsfield, City of - Public Schools (SPR 20221537)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 19, 2022 SPR22/1537 Linda Whitacre Interim Human Resources Director Pittsfield Public Schools 269 First Street Pittsfield, MA 01201 Dear Ms. Whitacre: I have received the petition of William Garrity appealing the response of the Pittsfield Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 24, 2022, following previous correspondence with the School, Mr. Garrity requested “all emails sent or received by [the] Taconic Principal . . . in December 2021 pertaining to the Taconic mascot name change.” The School responded on June 27, 2022, providing a fee estimate. Objecting to the fees, Mr. Garrity 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

Linda Whitacre SPR22/1537 Page 2 July 19, 2022 custodian must provide the responsive records. 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 June 27th Fee Estimate In its June 27, 2022 fee estimate, the School states that “it would take approximately 20 hours to locate and process the requested documents.” In the same letter the School indicates that the lowest paid employee with the necessary skills “will need 8 hours to perform the task.” The School also indicates that it will charge a rate of $25 per hour, and indicates that this is less than the hourly rate of the lowest paid employee with the necessary skills to perform the tasks. The School further indicates that it will not charge for the first two hours, and states the total cost will be $150. Based on the School’s response, the School must clarify the amount of time required to complete this request. Additionally, the School must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, reproducing, segregating, and redacting the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, as noted above, 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). Accordingly, the School must indicate whether it is charging for segregation and redaction, and whether such segregation or redaction is required by law.

Linda Whitacre SPR22/1537 Page 3 July 19, 2022 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). Conclusion Accordingly, the School is ordered to provide Mr. Garrity 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, Manza Arthur Supervisor of Records cc: William Garrity