Harold Rhodes v. Milford, Town of - Public Schools (SPR 20232114)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 20, 2023 SPR23/2114 Kevin McIntyre, Ed.D. Superintendent Milford Public Schools 31 West Fountain Street Milford, MA 01757 Dear Superintendent McIntyre: I have received the petition of Harold Rhodes appealing the response of the Milford Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 24, 2023, Mr. McIntyre requested the following: [A] list of all payments made between $5,000 and $30,000 inclusive from 07/01/2020 through 6/30/2023 within the Milford School Department expense and capital accounts from all sources of revenues, with the following data, if available, for each payment made: 1. Payee Name 2. Payee Address 3. Payment Amount 4. Vendor Account Number 5. Payee Tax ID 6. Purpose for Payment 7. Bid/ No Bid Tag 8. Date of Payment 9. Payee Telephone Number 10. Any other easily available relevant information regarding the payee The School responded on September 5, 2023, providing a fee estimate. Objecting to the fees, Mr. Rhodes appealed, and this case was opened as a result. 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 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

Kevin McIntyre, Ed.D. SPR23/2114 Page 2 September 20, 2023 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 School’s September 5th Fee Estimate In its September 5, 2023 response, the School provides a total fee estimate of $400.00. In support of its fee estimate, the School provides the following information: This request will require an estimated personnel time of 6 hours from the Central Office, School Department to compile any records in the possession of the School Department responsive to [the] request.

Kevin McIntyre, Ed.D. SPR23/2114 Page 3 September 20, 2023 Therefore, [the School] estimate[s] the financial cost to the School Department to complete [the] request as follows: Total Hours of Employee time = 4 Hours (first 2 hours nonassessable) Total Fee - 4 hours x $100.00 per hour= $400.00 Based on the information provided in the School’s September 5th response, it is unclear why the School requires six hours to compile the records. The School 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, the School is advised that under the Public Records Law, 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 records, but the fee shall not be more than $25 per hour. G. L. c. 66, § 10(d)(iii). Accordingly, the School must clarify the hourly rate being used, and confirm whether such rate is equal to or less than that of the lowest paid employee with the necessary skills to perform the required tasks. Further, it is unclear from the School’s response whether the School is charging a fee for segregation and redaction of the responsive records. The School is advised that, in accordance with the Public Records Law, 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). Information that is “required by law” to be segregated or redacted is found in statutes that explicitly indicate that certain records or information are not public records. Some common examples are the student record statute (G. L. c. 71, § 34D), the Criminal Offender Record Information (CORI) Act (G. L. c. 6, § 167), and laws regarding the confidentiality of domestic violence records (G. L. c. 41, § 97D; G. L. c. 41, § 98F; G. L. c. 209A, § 8). These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege is also interpreted to be “required by law.” For the reasons discussed above, I find the School 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 School is ordered to provide Mr. Rhodes with a response to his 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 the response to this office at pre@sec.state.ma.us.

Kevin McIntyre, Ed.D. SPR23/2114 Page 4 September 20, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Harold Rhodes