Jonathan Viner v. Spencer-East Brookfield Regional School District (SPR 20222297)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 26, 2022 SPR22/2297 Paul S. Haughey, Ed.D. Superintendent of Schools Spencer-East Brookfield Regional School District 306 Main Street Spencer, MA 01562 Dear Dr. Haughey: I have received the petition of Jonathan Viner appealing the response of the Spencer-East Brookfield Regional School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 19, 2022, Mr. Viner made a request for records pertaining to: [T]he scope of the repair work necessary as well as the total cost incurred by the [District] as a result of the heating system failure at David Prouty High School that occurred near the end of February 2022, specifically: [1] Invoices, and any relevant supporting documents, submitted by vendors/ contractors/third parties that outline the scope of work performed and the associated costs as a result of the heating system failure and related repair work; [2] Authorized payment vouchers or similar records that document any and all payments made by the District or any other party on the District’s behalf, relative to the heating system failure and the related repair work; [3] Insurance claim information and correspondence, if any manner of insurance claim was filed as a result of the heating system failure and the related repair work; [4] Payroll records for any employee that received overtime, premium pay, and/or compensatory time as a result of the heating system failure and the related repair work. Records shall at a minimum identify the employee, the timeframe in which they worked [5] [T]he wages they were paid; and, [6] Any and all other relevant documents that convey any information regarding the work done and the cost incurred. Relevant information includes, but is not limited to: Locations, extent of work, materials used, direction received by the 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

Paul S. Haughey, Ed.D. SPR22/2297 Page 2 October 26, 2022 [D]istrict, working conditions, determination of cause, diagnoses, system and/or component test results, and code compliance. In his request, Mr. Viner informed the District that his preferred format for the records is an electronic file. In an effort to ascertain the extent of time, energy and resources involved in his request, on September 21, 2022, Mr. Viner asked: “Item 1 – How many different vendors/contractors/ third parties would be applicable? Item 3 – Were there any insurance claims made? If there were, with how many different [i]nsurers were claims filed?” On September 22, 2022, the District provided an initial response, “[i]n accordance with [G. L. c. 66, § 10(b)(vi), [the District] is notifying you that [the District] will require 25 business days to respond to your request, as the magnitude of your request unduly burdens the other responsibilities of the [District].” The District made an initial search and indicates that it has records responsive to Mr. Viner’s request, and provided a fee estimate for $300.00. The District also indicated that the records may be redacted; however, did not claim any exemptions in this September 22nd response. As a result of the District’s response, Mr. Viner petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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

Paul S. Haughey, Ed.D. SPR22/2297 Page 3 October 26, 2022 ($.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 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 District’s September 22nd fee estimate In its September 22nd fee estimate, the District states that an initial search indicates the District has records responsive to Mr. Viner’s request. The District informed Mr. Viner that “[s]earch time by the lowest-paid [District] employee capable of searching for and compiling responsive records: 12 hours at $25.00 per hour, for a total of $300.00.” 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). It is unclear whether the District is required to reduce its estimate of 12 hours of time to search and compile records by 2 hours in compliance with G. L. c. 66, § 10(d)(iii). In addition, while the District states that the $25 per hour rate is the lowest-paid employee capable of searching and compiling the records, the District did not explain which employee is charged with those tasks and this employee’s hourly rate. Where $25 per hour is the maximum allowed by the Public Records Law, the District must clarify both these issues. Id. Further, the District must explain how it requires 12 hours to search for and compile the responsive records, and the numbers of hours it is allocating to searching and compiling the records. The District indicated that redactions will be made and exemptions claimed. However, the District’s September 22nd response did not claim any exemptions that will be utilized to redact certain information from the District’s production of records. The District is advised, 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). Therefore, the District must provide additional information explaining whether the redactions are required by law and the applicable statutes, if any.

Paul S. Haughey, Ed.D. SPR22/2297 Page 4 October 26, 2022 Modification or narrowing of the scope of the request Mr. Viner indicated in his appeal that with his September 21st email to the District, he was attempting to modify and/or narrow his request. As such, I encourage the parties to communicate 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 records sought more efficiently and affordably). Status of the requestor; reason for the request The District is advised, that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. Given this, the requestor may not be required to identify why he or she seeks to obtain access to the requested records. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976) (“the statute . . . extends the right to examine public records to ‘any person’ whether intimately involved with the subject matter of the records he seeks or merely motivated by idle curiosity”). Conclusion Accordingly, the District is ordered to provide Mr. Viner with a response to his request 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 the response to this office at pre@sec.state.ma.us. Mr. Viner may appeal the substantive nature of the District’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Viner