Ben Tobin v. Fairhaven, Town of - Public Schools (SPR 20221638)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 29, 2022 SPR22/1638 Melissa Bouchard Records Access Officer Fairhaven Public School District 128 Washington Street Fairhaven, MA 02719 Dear Ms. Bouchard: I have received the petition of Ben Tobin appealing the response of the Fairhaven Public School District (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 28, 2022, Mr. Tobin requested, “…special education policies and procedures stemming from the special education program plan statement.” Prior Appeal The requested records were the subject of a prior appeal. See SPR22/1394 Determination of the Supervisor of Records (June 30, 2022). In my June 30th determination I found that the School intended on providing a supplemental response and closed the appeal. On July 15, 2022, the School responded providing a fee estimate. Objecting to the fees, Mr. Tobin petitioned this office and this appeal, SPR22/1638, was opened as a result. 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, 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

Melissa Bouchard SPR22/1638 Page 2 July 29, 2022 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 July 15th fee estimate In its July 15, 2022 fee estimate, the School states, “[t]he [School] possesses records responsive to your request. There are approximately two hundred seventy (270) pages of documents that fall within your search parameters.” The estimated fee is $125.00. The School clarified the estimate providing the table below: Item Estimated Time Rate Estimated Cost Compilation and 5 hours $25.00 per hour $125.00 review time Total estimated cost 5 hours $25.00 per hour In its response, the School clarified the time spent for searching and complying stating, “[i]t is estimated that will take the District a half (0.5) an hour to search for and compile the responsive documents.” The School further explained the estimate stating, “[a]ssuming that each page will take an average of 1 – 1.5 minutes to review, I calculated for estimate purposes that assuming a one (1) minute review time, it will take approximately four hours and thirty minutes (4.50) to review all of the records.” The School further advised, “[a]though the public records law limits the District to assessing a maximum rate of $25.00 per hour, please note that the hourly rate of the lowest-paid employee qualified to complete your request exceeds that rate.” The School’s fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The School must clarify how much time is needed to search, how much time is needed to segregate and/or redact as required by law and must explain what tasks are necessary to provide the records. For the reasons discussed above, I find the School must revise its fee estimate. Conclusion Accordingly, the School is ordered to provide Mr. Tobin with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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.

Melissa Bouchard SPR22/1638 Page 3 July 29, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Ben Tobin