Jonathan Viner v. Spencer-East Brookfield Regional School District (SPR 20230243)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 23, 2023 SPR23/0243 Paul S. Haughey, Ed.D. Superintendent of Schools Spencer-East Brookfield Regional School District 306 Main Street Spencer, MA 01562 Dear Dr. Haughey: I have received the petition of Jonathan Viner appealing the fee estimate response of the Spencer-East Brookfield Regional School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 19, 2022, Mr. Viner requested the following records: [1] Invoices, and any relevant supporting documents, submitted by vendors/ contractors/third parties that outline the scope of work performed and the associated costs as a result of the heating system failure and related repair work; [2] Authorized payment vouchers or similar records that document any and all payments made by the District or any other party on the District’s behalf, relative to the heating system failure and the related repair work; [3] Insurance claim information and correspondence, if any manner of insurance claim was filed as a result of the heating system failure and the related repair work; [4] Payroll records for any employee that received overtime, premium pay, and/or compensatory time as a result of the heating system failure and the related repair work. Records shall at a minimum identify the employee, the timeframe in which they worked [5] [T]he wages they were paid; and, [6] Any and all other relevant documents that convey any information regarding the work done and the cost incurred. Relevant information includes, but is not limited to: Locations, extent of work, materials used, direction received by the [D]istrict, working conditions, determination of cause, diagnoses, system and/or component test results, and code compliance. 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

Dr. Paul S. Haughey SPR23/0243 Page 2 February 22, 2023 Prior appeal The requested records were the subject of a prior appeal. See SPR22/2297 Determination of the Supervisor of Public Records (Supervisor) (October 26, 2022). The District provided Mr. Viner with a September 22, 2022 initial response, including a $300.00 fee estimate. In the October 26th response, I directed the District to provide additional information regarding its fee estimate. On November 9, 2022, the District provided Mr. Viner with a further response to his request, which included an revised fee estimate of $166.50. Unsatisfied with the District’s response, Mr. Viner petitioned this office and this appeal, SPR22/0243, was opened as a result. Fee Estimate – Municipalities A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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). Current appeal G. L. c. 66, § 10(e) In his February 7, 2023 petition, Mr. Viner asserts, “[b]ased upon the Supervisor’s response to appeal, SPR22/2297, it is evident that the District did not provide an appropriate response within 10 business days; therefore, the District shall not charge a fee.” Mr. Viner also asserted, “[g]iven the related nature of the records requested and the reality of handling multiple documents, it is unreasonable to assume an average time of 10 minutes per document.” G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee

Dr. Paul S. Haughey SPR23/0243 Page 3 February 22, 2023 for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Viner submitted a request on September 19, 2022, and the District responded on September 22, 2022, providing a fee estimate under G. L. c. 66, § 10(b), I find that the District may assess fees to produce the requested records. The District’s November 9, 2022 Response and Revised Estimate In its November 9th response, the District clarified, “[t]he lowest-paid member of the District’s administrative staff capable of searching for and compiling responsive records is paid at a rate in excess of $25 per hour (specifically, $26.44 per hour). Therefore, the District’s good faith estimate is based upon the statutory maximum of $25 per hour.” I find that the District has clarified that $25 per hour is the hourly rate of the lowest-paid employee capable of conducting the tasks. Therefore, the District may assess $25 per hour. See G. L. 66, § 10(d)(iii); 950 C.M.R. 32.07(2)(m). The November 9th response also indicates, “…the District’s total population per the 2020 US Census is 14,216. Because the District’s population is less than 20,000, the District may assess a fee for the first two hours of employee time to search for and compile records responsive to [Mr. Viner’s] request.” I find that the District has clarified this matter, and may assess a fee for the first two hours of employee time to search for and compile the responsive records. Id. The District explains, “[a]n initial review suggests that the District has between 40 and 50 documents that may be responsive to [Mr. Viner’s] request. Assuming an average of 10 minutes to identify, search for, prepare to scan, re-collate and refile, the District estimates a total of 6.66 hours to search for and compile records responsive to [Mr. Viner’s] request at a rate of $25 per hour or $166.50.” The District further explained that, “[t]his good faith estimate does not include any time for segregating or redacting records.” I find that it is unclear how the District has assessed an “. . . average of 10 minutes to identify, search for, prepare to scan, re-collate and refile. . . .” In reviewing the District’s November 9th revised fee estimate, I find it is unclear whether the District is assessing 10 minutes per task or for search and compilation of the records. The District should clarify how it arrived at its 10 minutes timeframe, and further clarify whether the District is assessing 10 minutes for all the tasks, or just the search and compilation of records. It is additionally uncertain how many pages there are per each document. The District must clarify this matter. Paper versus Electronic Records The District advised Mr. Viner that certain of the requested records are only in hard copy/paper, and those records must be scanned in order to provide those records to Mr. Viner by an electronic means, as he requested. Please be advised that pursuant to the Public Records Law, “[t]he records access officer shall provide the public records to a requestor by electronic means unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in a usable electronic form.

Dr. Paul S. Haughey SPR23/0243 Page 4 February 22, 2023 Mr. Viner is advised, the records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format.” See G. L. c. 66, § 6A(d). If Mr. Viner would rather receive the paper records by having the District copy those records and provide them by a different means, Mr. Viner should communicate with the District relative to this matter. Modification or Narrowing of the Request As stated in my October 26th determination, I encourage the parties to continue to communicate to enable the District to facilitate providing the records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a 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 municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the District is ordered to provide Mr. Viner with a response to his request, 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Viner