Michelle Loubert v. Lenox, Town of - Town Clerk (SPR 20230845)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 10, 2023 SPR23/0845 Kerry L. Sullivan Town Clerk Town of Lenox 6 Walker Street Lenox, MA 01240 Dear Ms. Sullivan: I have received the petition of Michelle Loubert appealing the response of the Town of Lenox (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 18, 2023, Ms. Loubert requested: [T]he following information on the following Lenox Public Schools positions: 1. Whether the position is union (if union, what unit) or non-union. If non- union, whether position is exempt or non-Exempt. 2. Whether position is school year (ten month) or year-round (twelve month). 3. Current salary of the position (annual or hourly). 4. Number of scheduled hours per week for the position. 5. Copy of job description of each position listed below. Positions: 1. Building Clerk (Morris Elementary) 2. Morris Attendance/Clerical 3. Elementary Principal Administrative Assistant 4 . Principal’s Administrative Assistant (LMMHS) 5. Asst. Principal Administrative Assistant (LMMHS) 6. Administrative Assistant Guidance (LMMHS) 7. District Data Manager 8. Instructional Technology Support and PO. The Town responded on April 19, 2023, providing a fee estimate. Objecting to the fees, Ms. Loubert appealed, and this case was opened as a result. 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

Kerry Sullivan SPR23/0845 Page 2 May 10, 2023 The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. 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 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). The Town’s April 19th Fee Estimate In its April 19, 2023 response, the Town provides the following fee estimate:

Kerry Sullivan SPR23/0845 Page 3 May 10, 2023 [The Town has] heard from the School Department and as the custodian of these records, they have deemed it necessary to charge a reasonable fee to recover the costs of complying with [Ms. Loubert’s] public records request. Based on estimate: 5 hours of employee time 5 X 25.00= 125.00 Grand Total: $125.00 Based on the Town’s response, it is unclear why it requires five hours to respond to Ms. Loubert’s request. The Town must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, in its response, the Town has not stated whether the hourly rate being used is equal to or less than that of the lowest paid employee with the necessary skills to perform the tasks. The Town must clarify this. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Ms. Loubert with a response to her request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Michelle Loubert