Paul Healey v. Somerset-Berkley Regional School District (SPR 20232428)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 17, 2023 SPR23/2428 Robin Vaccaro Records Access Officer Somerset Public Schools 580 Whetstone Hill Road Somerset, MA 02726 Dear Ms. Voccaro: On October 11, 2023, this office received your petition on behalf of the Somerset Public Schools (School) seeking an extension of time to produce records, and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, I understand that the School furnished a copy of this petition to the requestor, Paul Healey. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 6, 2023, Mr. Healey requested “all Emails To/From [a list of seven] people for the period 01 Sep 2023 thru 05 Oct 2023.” Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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

Robin Vaccaro SPR23/2428 Page 2 October 17, 2023 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(b). Request for Additional Time to Produce Responsive Records In its petition, the School requests an extension of 20 business days and provides the following information in support of its request: In this case, [the School] estimates that it will take approximately thirty (30) seconds per page to search for (i.e. review the one thousand plus (1,000+) records that have been gathered to determine if they are responsive to the request), segregate and potentially redact the one thousand plus (1,000+) records that have been identified in response to the request. The School indicates that the tasks described above will take a total of 14 hours, and argues that it “makes this request for additional time because the employee who will perform the search, segregation and redaction process has many other responsibilities, which they cannot ignore.” I find that in light of the need to search for, collect, segregate and examine the records, and the capacity of the School to produce the request without the extension, the School has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). Accordingly, the School is granted an extension of 20 business days. Petition to Assess Fees – Municipalities The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv).

Robin Vaccaro SPR23/2428 Page 3 October 17, 2023 The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Current Petition In its petition, the School requests to charge for segregation and redaction of the responsive records and argues the following: The records sought need to be reviewed, and potentially redacted, for several reasons. Under Exemption (a) records may be exempt from production “specifically or by implication exempted from disclosure by statute” Under Exemption (c), records may be withheld when they involve “personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy .... “ G. L. c. 4, § 7(26)(a) and (c). A

Robin Vaccaro SPR23/2428 Page 4 October 17, 2023 review of the one thousand plus (1,000+) records indicates that redactions may need to be made pursuant to these exemptions. The [School] petitions the Supervisor of Public Records to be able to charge a fee to redact the records pursuant to any applicable Public Records Law exemptions, to the extent that such redactions are not required by law. Based on the information provided in its petition, I find the School has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Consequently, permission to charge for segregation and redaction not required by law cannot be granted. Please note, however, this does not preclude the School from charging for segregation and redaction that is required by law under Exemption (a). Conclusion Accordingly, I find the School has established good cause for a time extension of 20 business days as described above. However, as discussed above, permission to charge for segregation and redaction not required by law cannot be granted. This office encourages Mr. Healey and the School to communicate 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. Please note, Mr. Healey has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Paul Healey