Laura H. Ortiz v. Lynn, City of - Public Schools (SPR 20222425)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 7, 2022 SPR22/2425 Charles Gallo, J.D. Compliance Officer Lynn Public Schools 100 Bennett Street Lynn, MA 01905 Dear Mr. Gallo: I have received the petition of Laura Ortiz appealing the response of the Lynn Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 23, 2022, Ms. Ortiz requested seven categories of records regarding food services from 2/01/22-5/19/22. On September 6, 2022, Ms. Ortiz modified her request and sought only one category of records regarding her initial request, specifically “…any Correspondence for any Discussions in any way responsive regarding SPR22/1223 Lynn Public Schools (that was not sent to ‘Laura Ortiz’) Note: Timeline: 5/23/22-6/25/22 Regardless the formats (text, email or other).” Prior Appeals The requested records were the subject of prior appeals. See SPR22/2257 Determination of Supervisor of Records (October 14, 2022) and SPR22/2320 Determination of Supervisor of Records (October 20, 2022). In my October 20th determination, I found that the School provided a response on October 15, 2022, which included a fee estimate and closed the appeal. Objecting to the fees Ms. Ortiz petitioned this office and this appeal, SPR22/2425, 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 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

Charles Gallo, J.D. SPR22/2425 Page 2 November 7, 2022 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 October 15th response In its October 15, 2022 response, the School references its original September 2, 2022, fee estimate and indicates that Ms. Ortiz’s has not modified her request. In the School’s original September 2nd fee estimate, the School addressed the requested records at issue. The School stated that there were, “64 responsive records (correspondence) are within the possession, custody, or control of the Lynn Public Schools. The Lynn Public Schools has no other records that may be responsive to item #7 of your request.” The School further stated the required tasks in the estimate, “1 minutes per correspondence record is the estimated average to compile; 1 minutes per correspondence record is the estimated average to segregate; 2 minutes per correspondence record is the estimated average to redact;1 minutes per correspondence record is the estimated average to reproduce.” The School indicated that the redactions in the estimate were pursuant to attorney-client privilege, Exemption (a), Exemption (c), and FERPA. Given that Ms. Ortiz modified her request on September 6, 2022, it is unclear if the School intends on providing a revised fee estimate limited to the narrowed request. The School claims that it is assessing a fee for redactions under Exemption (a) and FERPA, as well as the attorney-client privilege. However, it is unclear if the School is assessing a fee for the same redactions, as well as Exemption (c) with regard to the modified request. Please note that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). Additionally, it is uncertain how the School requires a total of 5 minutes to review each correspondence. Nor is it clear, how many hours the School requires to prepare the records for production. The School must clarify these matters. The Regulations provide that in cases where necessary to reproduce the requested records, a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § 10(d); see also 950 C.M.R. 32.07(2). Although the School indicates that it would charge an hourly rate of $25, it is unclear whether the School has used the hourly rate of the lowest paid employee capable of performing the task. See G. L. c. 66,

Charles Gallo, J.D. SPR22/2425 Page 3 November 7, 2022 § 10(d)(ii); 950 C.M.R. 32.07(2)(i). The School must clarify this matter. Conclusion Accordingly, the School is ordered to provide Ms. Ortiz 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. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz