Carolyn Damato-MacPherson v. Tri-Town School Union (SPR 20222655)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 23, 2022 SPR22/2655 Brian Middleton-Cox Director of Human Resources Tri-Town School Union 28 Middleton Road Boxford, MA 01921 Dear Mr. Middleton-Cox: I have received the petition of Attorney Kevin S. Freytag on behalf of the Tri-Town School Union (Union) seeking an extension of time to produce records, and permission to charge for time spent to search for and produce records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Union furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On November 2, 2022, Carolyn Damato-MacPherson requested: ... the following data for all 3 Tri-Town School districts for the last 5 years: 1. Positions posted during the summer hiring season (listed singly as they are in the meeting materials). And for each of these positions, the following data points: a. FTE b. Number applicants c. Number of qualified applicants d. Number of offers extended e. Date posted f. Date offer accepted g. Hiring Salary Level Subsequent to the opening of this case, in email correspondence to this office and to an attorney for the Union, Ms. Damato-MacPherson contends that the Union’s petition was not submitted in a timely manner. In this case, Ms. Damato-MacPherson submitted her request prior to business hours on November 2, 2022. The Union submitted its petition and provided a response to Ms. Damato-MacPherson on November 17, 2022, the 10th business day following receipt of the request. Accordingly, I find that the Union submitted a timely petition. See 950 C.M.R. 32.06(4)(d), (g); see also 950 C.M.R. 32.06(2)(c). 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

Brian Middleton-Cox SPR22/2655 Page 2 November 23, 2022 Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Request for Additional Time to Produce Responsive Records In its November 17th petition, “the Union requests an additional 10 business days to respond to this request.” The Union states that it has made “this request for additional time because the employee who will perform the search and production or the requested records has many other responsibilities, which she cannot ignore.” Additionally, the Union provides the following information concerning the amount of time it will take to complete the request: The Union is in possession of records that are responsive to sections f and g of the request. For the five (5) year period identified in the request, there were approximately 360 jobs that were filled. To respond to sections f and g of the request, a Union employee, will need [to] retrieve the paper personnel file for each of the 360 individuals, pull the notice of appointment that was created upon hire, scan that document and then re-file the personnel file. The Union estimates

Brian Middleton-Cox SPR22/2655 Page 3 November 23, 2022 that it will take approximately 10 minutes per file to accomplish these tasks. Accordingly, the total amount of time to complete the response for sections f and g of the request is approximately 60 hours. In its November 17th response to Ms. Damato-MacPherson, the Union also provided records responsive to parts a, b, and e of the request, and indicated it does not possess records responsive to parts c and d of the request. Accordingly, I find that in light of the need to search for and collect the records, the capacity of the Union to produce the request without an extension, and efforts undertaken by the Union in fulfilling the current request, the Union has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The Union is granted an extension of 10 business days. Petition to Assess Fees – Municipalities The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a

Brian Middleton-Cox SPR22/2655 Page 4 November 23, 2022 public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first 2 (two) 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). Current Petition In its November 17th petition, “the Union requests that it be permitted to charge a fee to search for and produce records that are responsive to sections f and g of the request.” Please be advised that, under 950 C.M.R. 32.07(2)(a) “a records access officer may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection.” In contrast, 950 C.M.R. 32.06(4)(h)(1) provides that “any records access officer may petition the Supervisor to charge for time spent segregating or redacting records.” In this case, the Union has indicated only that it intends to “search for and produce records” and has not indicated that it intends to segregate nor redact records under the various exemptions of the Public Records Law. Where the Union is permitted to “assess a reasonable fee for the production of a public record,” I find it unnecessary to opine on that portion the Union’s November 17th petition requesting permission to assess fees. Conclusion Accordingly, I find the Union has established good cause for a time extension of 10 business days as described above. Additionally, as discussed above, it is unnecessary to opine on the Union’s request to assess fees. In its petition and in its response, the Union expresses willingness to work with Ms. Damato-MacPherson to narrow the scope of her request. This office encourages Ms. Damato- MacPherson and the Union to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to 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). Any subsequent fee estimate from the Union must be made in compliance with G. L.

Brian Middleton-Cox SPR22/2655 Page 5 November 23, 2022 c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Ms. Damato-MacPherson has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Carolyn Damato-MacPherson Kevin S. Freytag, Esq.