Ben Tobin v. Mohawk Trail Regional School District (SPR 20232279)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 6, 2023 SPR23/2279 Karen Totman Executive Secretary to the Superintendent Mohawk Trail Regional School District 24 Ashfield Road Shelburne Falls, MA 01702 Dear Ms. Totman: I have received the petition of Ben Tobin appealing the response of the Mohawk Trail Regional School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 17, 2023, Mr. Tobin requested “... the emails sent by [a named individual] this past week … I would also like to request the same for [a named individual].” On September 19, 2023, the District responded and provided Mr. Tobin with a fee estimate. Unsatisfied with the District’s response, Mr. Tobin petitioned this office and this appeal, SPR23/2279, 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. 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

Karen Totman SPR23/2279 Page 2 October 6, 2022 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 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 District’s September 19th Response In its September 19, 2023 response, the District provided a fee estimate of $50.00. The District stated the following: [The District has] determined by compiling the 223 email records, would take approximately .5 hours to generate and 1.5 hours to thoroughly review, and redact the requested information. In accordance with the Public Records Law, the hourly fee assessed cannot exceed $25.00 per hour. For communities with a population of more than 20,000, the hourly fee for the first two hours is waived. [The District] has a population of less than 20,000. [The] Executive Secretary to the Superintendent of Schools, will be generating the documents requested. Based upon the above information, I request that you send the Mohawk Trail Regional School District a check for $50.00… Current Appeal In his appeal, Mr. Tobin states, “I was not provided an itemized list breaking down where the cost is coming from… The district’s response is also not clear as to how they arrived at 223 emails for two staff members for a week of their emails.”

Karen Totman SPR23/2279 Page 3 October 6, 2022 Although the District has estimated that it will take 1.5 hours to redact the records, I find that the District must clarify if the redactions are required by law, and state the applicable statutes, if any. Pursuant to 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 District must clarify this. Additionally, the District’s fee estimate lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task. The District must clarify. For the reasons discussed above, I find the District 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 District is ordered to provide Mr. Tobin 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Ben Tobin