Catherine Thorp v. Medfield, Town of - Public Schools (SPR 20222554)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 23, 2022 SPR22/2554 Michael La Francesca Records Access Officer Medfield Public Schools 459 Main Street Medfield, MA 02052 Dear Mr. La Francesca: I have received the petition of Catherine Thorp appealing the response of the Medfield Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 3, 2022, Ms. Thorp requested records “related to 2022 changes to the 3rd grade Rocky Woods event, including, but not limited to eliminating children’s costumes and replacing them with t-shirts.” On October 11, 2022, the School responded. Unsatisfied with the School’s response, Ms. Thorp petitioned this office and this appeal, SPR22/2554, 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 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). 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

Michael La Francesca SPR22/2554 Page 2 November 23, 2022 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 11st Response In its October 11, 2022 response, the School provided a fee estimate of $125. The School asserts: Search Time is the time needed to locate and identify, pull from the files, copy and re-shelve or refile a public record. 950 CMR 32.02. In this case, after searching curriculum data[, t]he School Department estimates that in order to convert these records into a file format in which they can be sent electronically, the School Department will spend approximately one (1) hour uploading the records into a program allowing them to be sent. As a result, the School Department estimates a total of one (l) hour for search, and one (l) hour uploading of the records. . . . The School Department estimates that it will take approximately thirty (30) seconds per record to complete its review, compile, segregate and reproduce records sought in this request. As a result, the estimates a total of 3 hours for review, compile, segregate and reproduce records One (l) hour for search, and one (l) hour for uploading plus (3) hours for review, compile, segregate and reproduce records for a total of 5 hours. 5 hours multiplied by $25 per hour yields a fee estimate of $125. Current Appeal In her appeal, Ms. Thorp argues: [1] The RAO has calculated fees for segregation and redaction of requested documents without first petitioning you within the required 10 days of receiving my request. It is my belief that none of the requested records would involve mandatory segregation or redaction as required by law. [2] The RAO is charging fees for pulling files, copying and re-shelving or re- filing a public record when most of the records I requested should be in electronic form to begin with. [3] An RAO may not recover fees associated with record organization, but a “compile” task was factored into the RAO fee calculation. [4] While the maximum hourly rate of $25 per hour is allowed for compliance, the hourly rate may not be greater than the prorated hourly wage of the lowest paid employee who is capable of performing the task. The RAO did not indicate any effort to identify such individuals, even though it is my understanding that the school department has such staff members on hand.

Michael La Francesca SPR22/2554 Page 3 November 23, 2022 Although the School has estimated that the process of reviewing and redacting the responsive documents for production will take 3 hours of employee time, it is unclear under what exemptions the School is redacting the records. Pursuant to 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). The School must clarify if redactions are required by law. 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, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Consequently, it is unclear how the School may assess a fee for uploading the records into a program which would allow the records to be sent. Also, it is uncertain what tasks are involved in searching for the responsive records here. The School must clarify these matters. 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 tasks. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.07(2)(i). The School must clarify this. Further, the School must provide additional information regarding its population. 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). Population data shall be determined by the decennial U.S. Census, and it shall be the burden of the RAO to provide population data information when responding to a request. 950 C.M.R. 32.07(2)(m)(2)(ii). 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). Waiver of fees In her petition, Ms. Thorp also requests “relief from the RAO fee assessment.” Ms. Thorp 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. I encourage the requestor and the School to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the scope of the request. 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).

Michael La Francesca SPR22/2554 Page 4 November 23, 2022 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 the requestor 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: Catherine Thorp