Matt Magnarelli v. Burlington, Town of - Public Schools (SPR 20221748)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 12, 2022 SPR22/1748 Eric M. Conti, Ph.D. Superintendent Burlington Public Schools 123 Cambridge Street Burlington, MA 01803 Dear Dr. Conti: I have received the petition of Matt Magnarelli appealing the response of the Burlington 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 27, 2022, Mr. Magnarelli requested the emails of three public employees for a specified time period. Previous Appeal This request was the subject of a previous appeal. See SPR22/1626 Determination of the Supervisor of Records (July 28, 2022). In my July 28th determination, I closed SPR22/1626 in light of the School providing a response to Mr. Magnarelli, including a fee estimate. Objecting to the fees, Mr. Magnarelli further 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 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

Eric M. Conti, Ph.D. SPR22/1748 Page 2 August 12, 2022 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 custodian must provide the responsive records. Fee Estimates - 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 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). Current Appeal In his appeal petition, Mr. Magnarelli states that “the attachment/response the RAO provided in the July 14th email had a date of 7/12/22 typed into the document attached to the email.” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Magnarelli submitted a public records request on June 27, 2022, and the School’s fee estimate is dated July 12, 2022, but was received on July 14, 2022, I find it is unclear whether the School complied with G. L. c. 66, § 10(e). Specifically, the School must demonstrate whether it provided a response to Mr. Magnarelli’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request.

Eric M. Conti, Ph.D. SPR22/1748 Page 3 August 12, 2022 The School’s Fee Estimate In its fee estimate dated July 12, 2022, the School provides the following information: Searches of the School’s servers will need to be conducted by Information Technology Staff to locate any responsive emails concerning [the request] and convert them into a format capable of production for an expansive time period. Given the breadth of emails [Mr. Magnarelli] seek[s], including “all” emails sent to or received by three specifically-named individuals over the course of an entire school year, this work is estimated to take approximately 3.5 hours, for a total of $87.50. The lowest paid employee capable of performing the necessary work to search for and produce such emails makes over $25.00 per hour. Therefore, the hourly rates will be reduced to $25.00 per hour. ... In addition, given the volume of records, it is anticipated that it will take approximately 37.9 hours (2,274 emails @ 1 minute per email review), for a total of $947.50, to segregate information protected by law, including FERPA or state student privacy regulations. The School further indicates that it will not charge for the first two hours, and indicates a total amount of $985.00. Based on the School’s response, it is unclear why it requires 3.5 hours to locate and reproduce the responsive records. Specifically, it is unclear why the School needs to “convert them into a format capable of production” or how this would constitute chargeable “Search Time” under the regulations. The School must clarify this. Please be advised that the School cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289- 90 (1979). Additionally, in its response, the School provides suggestions for narrowing the scope of the request. This office encourages Mr. Magnarelli and the School to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality 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 municipality 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 School is ordered to provide Mr. Magnarelli 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

Eric M. Conti, Ph.D. SPR22/1748 Page 4 August 12, 2022 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: Matt Magnarelli