Debbie Barnes v. Billerica, Town of - Public Schools (SPR 20222553)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 22, 2022 SPR22/2553 Robin Hulsoor Director of Finance and Operations Billerica Public Schools 365 Boston Road Billerica, MA 01821 Dear Ms. Hulsoor: I have received the petition of Debbie Barnes appealing the fee estimate of the Billerica Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 29, 2022, Ms. Barnes requested, “…all emails between BMHS Administrators regarding an incident that happened on February 2, 2022.” The School provided a fee estimate on October 13, 2022. Unsatisfied with the response, Ms. Barnes petitioned this office and this appeal, SPR22/2553, 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). 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). 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

Robin Hulsoor SPR22/2553 Page 2 November 22, 2022 The School’s October 27th Fee Estimate In its October 27, 2022 response, the School reduced the fee from $425.00 to $250.00 and stated as follows: “[e]mail correspondence documents from Seven (7) Billerica Public Schools staff using Four (3) key words ‘Barnes’, ‘CB’, ‘incident’ covering the period from February 2, 2022 to March 28, 2022 as noted in attached email request. This request now constitutes 21 individual email searches that could contain hundreds of emails. If this initial search exceeds this estimate, I will provide a follow up fee estimate.” The School provided a summary as follows: Time required for IT Director to perform individual searches, compile emails and reproduce records[:] 8 hours Time required segregating and redacting emails for private student or staff information or HIPPA violations as required by law. See student record statute G.L. c. 71 34D, 34[:] 4 hours First 2 hours – no fee assessed (2 hours) Staff time for fee assessment 10 hours Maximum allowed hourly rate under Public Records Law $25.00 Fee required for records response $250.00 In its October 27, 2022 response, the School stated, “I have received your clarification and am attaching the fee estimate for the 28 searches you are requesting. Please note that my request for clarification is and has always been to help narrow the search to keep the fees down for requesters not to omit records.” Current appeal In her appeal, Ms. Barnes asserted, “… limit your search for this PRR to the keywords ‘Barnes’, ‘Craig’, and ‘CB’ for February 2, 2022 to March 28, 2022. That should for sure keep it under the 2 hour minimum.” Waiver of fees In her petition, Ms. Barnes contends she is entitled to a waiver of fees because she believes that she lacks the financial ability to pay the full amount of the reasonable fee. Ms. Barnes is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. In addition, a ruling of indigency by a court of law is inapplicable to requests for records made pursuant to the Public Records Law. See G. L. c. 261, § 27A (defining indigency for civil, criminal or juvenile proceedings or appeals in any court); see also G. L. c. 261, § 27B (allowing any party to file with the clerk an affidavit of indigency and a request for a waiver, substitution or payment by the commonwealth of fees and costs upon a form prescribed by the chief justice of the supreme judicial court). The Public Records Law does not provide for an exception when the party requesting the

Robin Hulsoor SPR22/2553 Page 3 November 22, 2022 records is indigent. See G. L. c. 66, § 10(a) (every person for whom a search of public records is made shall pay the actual expenses of such search); see also Fierro v. Hiscock, et al., Middlesex Superior Court, C.A. No. 96-7243 (1997) (indigent prisoner not entitled to receive records sought pursuant to the Public Records Law free of charge). Therefore, it is not within my enumerated powers to either require or approve such a waiver. Although the School has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 10 hours of employee time, it is unclear how the School requires this many hours to produce responsive records. It is not clear what tasks are involved to prepare responsive records for production. As such, the School must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The School must further confirm that $25.00 is 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. I encourage Ms. Barnes and the School to communicate further in order to facilitate producing records efficiently and affordably. Ms. Barnes may wish to include additional 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) (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). 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). Conclusion Accordingly, the School is ordered to provide Ms. Barnes 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: Debbie Barnes