Casey McLaughlin v. Sharon, Town of - Public Schools (SPR 20230591)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 7, 2023 SPR23/0591 Meg Dussault, Ed.D. Assistant Superintendent of Schools Director of Arts and Community Education Sharon Public Schools 75 Mountain Street Sharon, MA 02067 Dear Dr. Dussault: I have received the petition of Casey McLaughlin appealing the response of the Sharon Public Schools (School/District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 22, 2023, Ms. McLaughlin requested: [1] All contracts and/or statements of work since 2017, and emails exchanged between Sharon Public Schools and [a named individual] and [an identified website] in the past 12 months[;] [2] Any invoices paid to [a named individual] and/or [an identified website] since 2017[.] The School provided a fee estimate on March 23, 2023. Unsatisfied with the School’s fee estimate, Ms. McLaughlin petitioned this office and this appeal, SPR23/0591, was opened as a result. Fee estimate – 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). 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

Meg Dussault, Ed.D. SPR23/0591 Page 2 April 7, 2023 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 March 23rd Fee Estimate In its March 23, 2023 fee estimate, the School states “[p]ayment may be made by check in the amount of $500.00 payable to Sharon Public Schools.” However, in the chart provided by the School, the total estimated cost is stated as $400.00. It is unclear whether $400.00 or $500.00 is the total estimated cost to produce the responsive records. It is also unclear why it will take 20 total hours to respond to the request when it will take only 12 hours to compile and segregate the records and 4 hours to review and redact the records. The School has provided the records responsive to Request #2. In regard to Request # 1, the School asserts: [Y]our request of emails produced over 5,000 documents. Though the majority of these documents are most likely advertisements for services the company provides, it will take our IT department several days to sort through all the emails, and convert them to viewable PDF’s. The good faith fee estimate associated with the compilation, segregation, review, possible redaction, and production of these records is as follows: Item Estimated Time Rate Estimated Cost Compilation and 12 hours $25.00 per hour $300.00 segregation time Review and redaction 4 hours $25.00 per hour $100.00 time Total estimated cost 20 hours $25.00 per hour $400.00 The District estimates it will require twelve (12) hours for its IT Department to compile and segregate the responsive documents as it needs to find each responsive email on the server, export the emails and attachments from the server into a format that it can be reviewed and redacted and eventually transmitted to you, and combine the e-mails with their respective attachment files. Based on the School’s response, it is unclear why it requires 12 hours to compile and segregate the responsive records. Specifically, it is unclear why the School needs to “export the

Meg Dussault, Ed.D. SPR23/0591 Page 3 April 7, 2023 emails and attachments from the server into a format that it can be reviewed and redacted” or how this would constitute chargeable “Search Time” under the regulations. The School must clarify this. Please be advised that the School cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Also, it is uncertain if the School is assessing a fee for segregating the records pursuant to certain exemptions. Under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). The School must clarify if segregation is required by law. The School states: The estimated time for review and redaction time is based on four (4) hours spent reviewing and redacting the responsive documents. The District estimates that it will take an average of one (1) minute to review and redact each page for information that must be redacted by law. The number is based on the need to carefully read each page, make the necessary determinations regarding whether the record contains exempt information, redact any confidential information contained in the records if found, and the possibility that other individuals may need to be consulted throughout this process. Although the School has estimated that the process of reviewing and redacting the responsive documents for production will take 4 hours of employee time, it is unclear what the School is reviewing the records for. For example, it is unclear if the School is assessing a fee for redacting the records pursuant to certain exemptions. Under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). The School must clarify if redactions are required by law. Additionally, although the School indicates that it would charge an hourly rate of $25, it is unclear whether the School has used the hourly rate of the lowest paid employee capable of performing the tasks. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.07(2)(i). The School must clarify this. Further, 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). Population data shall be determined by the decennial U.S. Census, and it shall be the burden of the RAO to provide population data information when responding to a request. 950 C.M.R. 32.07(2)(m)(2)(ii). As

Meg Dussault, Ed.D. SPR23/0591 Page 4 April 7, 2023 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). This office encourages Ms. McLaughlin and the School 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 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 the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. 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. McLaughlin 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: Casey McLaughlin