Martin Y. Benson v. Acton-Boxborough Regional School District (SPR 20222138)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 30, 2022 SPR22/2138 Andrew Shen Records Access Officer Acton-Boxborough Regional School District 15 Charter Road Acton, MA 01720 Dear Mr. Shen: I have received the petition of Martin Y. Benson appealing the fee estimate response of the Acton-Boxborough Regional School District (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 21, 2021, Mr. Benson requested documents regarding the School Committee’s decision to retire the Colonial mascot. Previous appeals The requested records were the subject of previous appeals. See SPR21/1827 Determination of the Supervisor of Records (August 5, 2021); SPR21/3018 Determination of the Supervisor of Records (November 29, 2021); SPR22/0173 Determination of the Supervisor of Records (February 7, 2022) and SPR22/1198 Determination of the Supervisor of Records (June 7, 2022). The School responded on June 22, 2022. Unsatisfied with the response, Mr. Benson petitioned this office and this appeal, SPR22/2138, was opened as a result. Fees - Municipalities 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. 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). 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

Andrew Shen SPR22/2138 Page 2 September 30, 2022 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 how 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The School’s June 22nd Fee Estimate On June 22, 2022, the School provided a fee estimate of $224 and stated as follows: It is estimated that there may be approximately 300 texts to be searched in this category. This would be 300 texts x .75 minutes = 225 minutes divided by 60 minutes = 3.75 hours X $25 = $93.75 It is estimated that there may be 250 additional emails to be searched … This would be 250 emails x 1.25 minutes = 312.5 minutes divided by 60 minutes = 5.21 hours x $25 = $130.25 Although the School has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 8.96 hours of employee time, it is unclear how the School requires this many hours to produce responsive records. It is not clear from the School’s estimate how many hours are allocated to search, and how many hours are allocated for segregation and/or redaction of the records. Additionally, I find the School must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Further, the School must confirm that the $25.00 hourly charge is that of the lowest paid employee who has the necessary skill required to complete the tasks required to produce records. For the reasons discussed above, I find the School must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). I encourage Mr. Benson and the School to communicate in order to facilitate producing records efficiently and affordably. Mr. Benson may wish to include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The School must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii)

Andrew Shen SPR22/2138 Page 3 September 30, 2022 (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the School is ordered to provide Mr. Benson with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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 Sincerely, Manza Arthur Supervisor of Records cc: Martin Y. Benson