Laura H. Ortiz v. Lynn, City of - Public Schools (SPR 20232273)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 5, 2023 SPR23/2273 Charles N. Gallo Public Records Access Officer Lynn Public Schools 100 Bennet Street Lynn, MA 01905 Dear Attorney Gallo: I have received the petition of Laura Ortiz appealing the response of the Lynn 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 September 8, 2023, Ms. Ortiz requested various records regarding the McKinney- Vento student statistics. On September 22, 2023, the School responded and provided Ms. Ortiz with a fee estimate. Unsatisfied with the School’s response, Ms. Ortiz petitioned this office and this appeal, SPR23/2273, 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 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 Department 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. Attorney 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 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

Charles N. Gallo, Esq. SPR23/2273 Page 2 October 5, 2023 custodian must provide the responsive records. Fee estimate – 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 (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 September 22nd Response In its September 22, 2023 response, the School provided Ms. Ortiz with two methods to obtain the records without cost and stated, “the records total over 122,000 KB. This far, far exceeds what [the School] can attach and send through email due to the limitations of the Outlook email system. [The School] invite[s] [Ms. Ortiz] to schedule a time to visit our office to inspect the files… As this option would take almost no further employee time, it is available without fee. Alternatively, if [Ms. Ortiz] wish[es] to provide a new, unopened flash drive of sufficient size and a pre-paid postage envelope, [the School] would be happy to load the files onto the flash drive and mail it back to [Ms. Ortiz]. As this option also would take almost no further employee time, it too is available without fee. Additionally, the School provided fee estimates for two alternative methods for Ms. Ortiz to receive the records. The School provided a fee estimate of $153.75 and stated the following: If [Ms. Ortiz] wish[es] to receive the records via email, below is a fee estimate, for additional time needed to reproduce the records in the requested format of email. Files totaling over 122,000 KB will require the sending of approximately 123 emails. Based upon the experience of responding to requests via email, it is estimated that 3 minutes per email will be needed to reproduce the records via email, for a total of 369 minutes, which equals 6.15 hours. Despite the hourly rate attributed to the

Charles N. Gallo, Esq. SPR23/2273 Page 3 October 5, 2023 lowest paid employee who has the necessary skill being higher, I am using the lower state rate of $25 per hour in assessing the fee for this request, rather than petitioning for a higher rate. $153.75 is the resulting fee for email reproduction. The School provided an alternative fee estimate of $61.25 and stated: If [Ms. Ortiz] wish[es] to receive the records via DropBox, and [is] able to set up a DropBox to receive the files, I would be happy to reproduce via DropBox. Below is a fee estimate, for additional time needed to reproduce the records in the requested format of DropBox... There are 294 separate files. Based upon the experience of responding to requests using DropBox, it is estimated that 30 seconds per file will be needed to reproduce the records via DropBox, for a total of 8,820 seconds, which equals 2.45 hours. Despite the hourly rate attributed to the lowest paid employee who has the necessary skill being higher, I am using the lower state rate of $25 per hour in assessing the fee for this request, rather than petitioning for a higher rate. $61.25 is the resulting fee for DropBox reproduction. Current Appeal In her appeal, Ms. Ortiz states, “the fee was unnecessary given this request could have been prudently completed given that no redaction or segregation was claimed.” Unclear Appeal Based on the foregoing, the basis of Ms. Ortiz’s appeal is unclear. Ms. Ortiz is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). In this case, where the School has provided two options for Ms. Ortiz to obtain the records without cost, Ms. Ortiz’s claim that “the fee was unnecessary” is unclear. This office encourages Ms. Ortiz to communicate directly with the School in order to arrange receipt of the records responsive to her request. Ms. Ortiz may then describe her specific objections to the School’s response. Conclusion Based on the above, I will now consider this administrative appeal closed.

Charles N. Gallo, Esq. SPR23/2273 Page 4 October 5, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz