Laura H. Ortiz v. Lynn, City of - Public Schools (SPR 20222559)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 23, 2022 SPR22/2559 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 [c]orrespondence for any [d]iscussions 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 the Supervisor of Records (October 14, 2022); SPR22/2320 Determination of the Supervisor of Records (October 20, 2022); and SPR22/2425 Determination of the Supervisor of Records (November 7, 2022). In my November 7th determination, I found that the School failed to provide an updated fee estimate to Ms. Ortiz’s revised request and I ordered the School to provide a response. On November 9, 2022, the School responded with an updated estimate. Objecting to the fees Ms. Ortiz petitioned this office and this appeal, SPR22/2559, 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 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. SPR22/2559 Page 2 November 23, 2022 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). 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 November 9th fee estimate In its November 9, 2022 response, the School stated, “[i]n order to clarify, $28.47 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. However, the RAO is using the lower state rate of $25 per hour in assessing the fee for this request, rather than petitioning for a higher rate.” The School further explained the fee stating the following: 1 minute per correspondence record is the estimate to compile; 1 minute per correspondence record is the estimate to segregate; 1 minutes per correspondence record is the estimated to reproduce; 5 minutes per correspondence record is the estimate to redact. Subtotal = 8 minutes per correspondence to compile, segregate, redact, and reproduce. 64 correspondence records at 13 minutes each = 512 minutes = 8.53 hours 4 hours without fee per Massachusetts Regulations = 4.53 hours subject to fee Grand total at $25/hour per Massachusetts Regulations = $113.25 The School states that it would take 5 minutes to redact the requested records. It is unclear why the School requires a total of 5 minutes to redact each correspondence. Further, the School states it would require 1 minute to compile, 1 minute to segregate, and 1 minute to reproduce. It is unclear why the School requires 1 minute for each of these tasks. Further the fee estimate states “8 minutes per review for correspondence to compile, segregate, redact, and reproduce” and later states “64 correspondence records at 13 minutes each = 512 minutes = 8.53 hours.” As such, it is unclear which measure the School is using to calculate its estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The School must clarify these matters.

Charles Gallo, J.D. SPR22/2559 Page 3 November 23, 2022 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