Matt Magnarelli v. Billerica, Town of - Public Schools (SPR 20230304)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 2, 2023 SPR23/0304 Tim Piwowar Superintendent Billerica Public Schools 365 Boston Road Billerica, MA 01821 Dear Supt. Piwowar: I have received the petition of Matt Magnarelli appealing the fee estimate of the Town of Billerica (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 7, 2023, Mr. Magnarelli requested the following information: [1] All emails, notes, and communications regarding the public figure and speaker [specified individual]. This includes any contracts regarding payment to her or her speaking engagement. [2] ... all emails and notes from any public-school employee and the public person [specified individual] on or after 1/1/22. [3] Any emails sent or received after 1/31/23 to or from any Public Employee in your school district’s possession regarding the news reporter or news agency as [specified search terms]. This includes any reference to [specified individual] in any way including his news business [specified name] or his first and last name in any way. The Town provided a response on February 13, 2023, which included a fee estimate. Unsatisfied with the Town’s response, Mr. Magnarelli petitioned this office, and SPR23/0304 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. 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

Tim Piwowar SPR23/0304 Page 2 March 2, 2023 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s February 13th response In its February 13th response, the Town provided a fee estimate of $1,288.75 as follows: Request #1 All emails, notes, and communications regarding the public figure and speaker [specified individual]. This includes any contracts regarding payment to her or her speaking engagement. This request results with 261 separate BPS users and >500 messages. Extraction Unique User Exports = 261 Total Hrs. = 21.75 Estimated time per export/min = 5 Time required/Hrs. = 21.75 Redaction Unique User Exports = 588 Total Hrs. = 29.4 Estimated time per export/min = 3 Time required/Hrs. = 29.4 Request #2 I am requesting all emails and notes from any public-school employee and the public person [specified individual] on or after 1/1/22. Extraction Unique User Exports = 2 Total Hrs.= 0.17 Estimated Time per export/min = 3 Time required/Hrs. = 0.17

Tim Piwowar SPR23/0304 Page 3 March 2, 2023 Redaction Unique User Exports = 3 Total Hrs. = 0.15 Estimated Time per export/min = 3 Time required/Hrs. = 0.15 Request #3 Any emails sent or received after 1/31/23 to or from any Public Employee in your school district’s possession regarding the news reporter or news agency as [specified search terms]. This includes any reference to [specified individual] in any way including his news business [specified name] or his first and last name in any way. Extraction Unique User Exports = 10 Total Hrs. = 0.83 Estimated Time per export/min = 5 Time required/Hrs. = 0.83 Redaction Unique User Exports = 25 Total Hrs. = 1.25 Estimated Time per export/min = 3 Time required/Hrs. = 1.25 Estimated total time to completion 53. 55 Hours The Town advised that “[p]er the attached itemized document, the District estimates that it will take 22.75 hours to search for the records you have requested and an additional 30.8 hours to determine what portion(s) of these records are subject to segregation and redaction under applicable state laws.” The Town further advised that “…the District shall not charge a fee for the first two hours of time spent responding to a public records request. Given that the anticipated time required to respond to your request exceeds this amount by 51.55 hours, the District will be charging a fee of $25.00/hr for this additional time.” In an email dated February 16, 2023, the Town stated the following: As additional information to the previous communication, please note the following: 1. Please note that the scope of your request includes all emails from all members of the Billerica Public Schools, and as the estimate indicates, that includes emails from 261 separate users. Should you wish to modify the scope of the request by narrowing it to a subset of that group, that has the potential to reduce the time required to complete that search. . . . Although the Town has estimated that the process of responding to the records request will take 53.55 hours of employee time, it is unclear how the Town requires such an extensive amount of time to search for responsive records. It is additionally uncertain how the Town requires 5 minutes and 3 minutes to export the information. As such, the Town must provide

Tim Piwowar SPR23/0304 Page 4 March 2, 2023 further details regarding the fee estimate and the tasks involved in exporting the information. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, the Town indicates that it intends to redact the records but does not state whether the proposed redactions are required by law as well as the applicable statutes, if any. G. L. c. 66, § 10(d)(iv). See G. L. c. 66, §10(d)(ii); 950 C.M.R. 32.06(4). The Town must clarify these matters. Further, the Town must 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 the records requested. I encourage the parties to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the scope of the request as suggested by the Town. G. L. c. 66, § l0(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(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). For the reasons discussed above, I find the Town 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 Town is ordered to provide a response to Mr. Magnarelli, 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. Mr. Magnarelli may appeal the substantive nature of the Town’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Matt Magnarelli