Ben Tobin v. Braintree, Town of - Public Schools (SPR 20232911)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 18, 2023 SPR23/2911 Petra W. Platt, EdD. Director of Special Services Braintree Public Schools 348 Pond Street Braintree, MA 02184 Dear Dr. Platt: I have received the petition of Ben Tobin requesting reconsideration of my November 6, 2023 determination pertaining to a public records request to the Braintree Public Schools (School). On October 23, 2023, Mr. Tobin requested “…the district’s Conditions of Funding for IDEA part B as well as the corresponding special education policies and procedures.” Prior appeal and reconsideration The request was the subject of a prior appeal and subsequent reconsideration. See SPR23/2530 Determinations of the Supervisor of Records (November 6, 2023 and November 28, 2023). In my November 28th determination, I found it unclear if the School provided a response consistent with G. L. c. 66, § 10(e), and ordered the School to clarify. On November 29, 2023, the School responded and provided an updated fee estimate. Unsatisfied with the fees, Mr. Tobin petitioned this office and this appeal, SPR23/2911, was opened as a result. Fee Estimates 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 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 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

Petra W. Platt, EdD. SPR23/2911 Page 2 December 18, 2023 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The School’s November 29th fee estimate On November 29, 2023, the School provided a fee estimate, and stated the following: We are in receipt of your October 23, 2023 request for the Braintree Public Schools special education policies and procedures. We responded to a similar request on June 22, 2022. The content of that response remains unchanged as the policies and procedures have not changed since June 2022. Similarly, the position of the district with regard to how the public can access the policies and procedures remains the same. The policies and procedures are in a 2” binder of approximately 400 pages, many of which are two sided. The cost associated with the time of an administrative assistant compiling this request, at a rate of $25/hour is: Travel to our special education office to collect materials: 0.5 hours Disassemble and organize the materials: 0.75 hours Scan all documents (18 seconds a page whether one-sided or two-sided):2.0 hours Email multiple Pdfs to you: 0.3 hours Total: 3.55 hours Without charging you for the first two hours, we would charge a fee of 1.55 hours@ $25/hour for the work of the administrative assistant. The total fee is: $38.75 If you would like the Braintree Public Schools to complete this work, please send a check in this amount to the Braintree Public Schools, 348 Pond Street, Braintree, MA 02184. Additionally, you are welcome to review the binder by traveling to Braintree High School, 128 Town Street, Braintree, MA 02184 in order to review the binder in person. Current appeal In his appeal, Mr. Tobin states the following:

Petra W. Platt, EdD. SPR23/2911 Page 3 December 18, 2023 The fundamental issue here is the agreement they signed states the documents will be readily available, and they are supposed to be reviewed by the state during inspections...so if, as they note, the documents are buried in a binder somewhere then they were not truthful in the document they signed to get federal funds. They need to provide the documents free of charge per the Conditions of Funding agreement or they need to put in writing that they are not accessible in which case I will file a PRS complaint. Although the School has estimated that it will take 3.55 hours of employee time to prepare records for production, it is unclear how the School requires this many hours to produce responsive records. The School indicates that it will charge “2 hours at a cost of $25.00 per hour ($50.00)” for scanning. The School also states that it charging 0.75 hours to “[d]isassemble and organize the materials[,]” and 0.5 hours to “[t]ravel to our special education office to collect materials. . . .” However, it is unclear how the School may assess a fee for these tasks under G. L. c. 66, § 10(d)(iii). Particularly, it is uncertain how these tasks constitute time to search for, compile, segregate, redact, or reproduce records. The School must clarify this matter. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, the School is reminded that it cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). For the reasons discussed above, I find the School must revise its fee estimate or provide further explanation of how the fee assessed in its November 29th estimate is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the School is ordered to provide Mr. Tobin with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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