Debbie Barnes v. Billerica, Town of - Public Schools (SPR 20230313)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 3, 2023 SPR22/0313 Tim Piwowar Superintendent Billerica Public Schools 365 Boston Road Billerica, MA 01821 Dear Superintendent Piwowar: I have received the petition of Debbie Barnes appealing the fee estimate of the Billerica Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 29, 2022, Ms. Barnes requested, “…all emails between BMHS Administrators regarding an incident that happened on February 2, 2022.” Previous appeal The requested records were the subject of a previous appeal. See SPR22/2553 Determination of the Supervisor of Records (November 22, 2022). The School responded on February 3, 2023. Unsatisfied with the response, Ms. Barnes petitioned this office and this appeal, SPR23/0313 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. 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, 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 SPR23/0313 Page 2 March 3, 2023 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 how if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). The School’s February 3rd Response In its February 3, 2023 response, the School advised, “I have responded to all of your requests and have always tried to help you with records as required by the law. After the fee estimate was not accepted and appealed to the state I provided you with 2 individual records request searches and provided documents at no charge. Please see email responses with documents provided on Nov 23, 2022 and December 22, 2022 attached to this email. The 2 hours of free time have well been exhausted and the district is not required to provide any additional time without compensation. Therefore, I am attaching the original fee estimates with emails from Oct 13th and Oct 27th to be paid prior to searching any further records related to this matter.” Current Appeal In her appeal Ms. Barnes asserts, “[t]he 2 hours of free time for the PRRs have not been exhausted, as the amount of time spent completing the 2 individual records request searches is less than 30 minutes, thereby giving me at least another 1.5 hours of search time which would be more than ample for my small PRR request on January 20, 2023.” In the November 22, 2022 determination, I requested that the School clarify the fee estimate. Specifically, the School has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 10 hours of employee time, it is unclear how the School requires this many hours to produce responsive records. It is additionally uncertain what tasks are involved to prepare responsive records for production. 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). The School must further 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 Ms. Barnes and the School to communicate further in order to facilitate producing records efficiently and affordably. Ms. Barnes may wish to include applicable time periods or additional factors to enable the search to be processed. 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).

Tim Piwowar SPR23/0313 Page 3 March 3, 2023 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 Ms. Barnes with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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: Debbie Barnes