Kathleen LeClair v. Old Rochester Regional School District (SPR 20233115)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 10, 2024 SPR23/3115 Michael S. Nelson Records Access Officer Old Rochester Regional School District 135 Marion Road Mattapoisett, MA 02739 Dear Mr. Nelson: I have received the petition of Kathleen LeClair appealing the response of the Old Rochester Regional School District (School/District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 7, 2023, Ms. LeClair requested the following records: Per the attached Amended Budget Worksheets for ESSER III grant funding expenditure allocation for ORRSD, please provide a breakdown of the amount of each expenditure request submitted to the Department of Education for approval as follows: $62,000.00 Line Item 2 – Instruction/Prof Staff $5,580.00 Line Item 5a – Fringe Benefits $11,000.00 Line Item 6 – Contractional Services (Instructional Services) $20,000.00 Line Item 6 – Contractional Services (Consultants/Professional Development for Teachers & Support Staff) The School provided a response on December 21, 2023, which included a fee estimate. Unsatisfied with the response, and objecting to the fees, Ms. LeClair petitioned this office and this appeal, SPR23/3115, 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 agency or 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

Michael S. Nelson SPR23/3115 Page 2 January 10, 2024 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. 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 custodian must provide the responsive records. Fees - Municipalities 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. 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 how 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 December 21st response In its December 21, 2023 response, the School provides a fee estimate of $100.00 for 4 hours of work at $25.00 an hour spent “searching for and compiling records in response to [the]

Michael S. Nelson SPR23/3115 Page 3 January 10, 2024 request, reproducing those records for production to [Ms. LeClair], and providing [Ms. LeClair] with this response as required by law.” The School states the following: With respect to the documents you have requested, they are not necessarily maintained in a single file or in a manner that allows for them to be quickly located and reproduced; instead, they are located in individual files throughout the Central Office, primarily in the business office. In response to your request, District employees have spent multiple hours searching for responsive records and compiling them to a single file, and reproducing them for production with the response required by law, and production of these records to you will be subject to your payment of the following fee estimate based on the time the District has actually spent responding to this request. We do not believe, based on the nature of the records, that segregation and redaction will be required at this time. In municipalities with fewer than 20,000 residents, all time required to search for, compile, segregate, redact, and reproduce records in response to a public records request may be subject to a fee. See M.G.L. c.66, §10(d)(iii); 950 CMR 32.07(m). In the most-recent decennial U.S. Census, the member towns of the Old Rochester Regional School District (Marion, Mattapoisett, and Rochester) had a total population of 17,572 and, as such, the District may charge a fee for all time involved in responding to your request . . . Given the complex nature of the requested records and their location throughout the business office, which also contains confidential financial records, the lowest paid employee of the District who could have completed the search for and compilation of responsive records would be a member of the District’s Central Office staff, all of whom are compensated at rates exceeding $25.00 per hour. As such, the time spent completing the response process will be charged at the maximum rate of $25.00 per hour. District employees have already spent at least 4 hours searching for and compiling records in response to your request, reproducing those records for production to you, and providing you with this response as required by law. This has been done as a relatively fluid process, but we estimate the time has been comprised of approximately 90% search and compilation time and 10% reproduction time. As such, the initial fee is 4 hours $25/hour, for a total of $100.00. Based on the School’s response, it is unclear if the School is attempting to charge Ms. LeClair for providing a response to her request. A custodian of records may only charge a fee for the employee time required to “search for, compile, segregate, redact or reproduce the record or records requested.” G. L. c. 66, § 10(d)(iii). The School must clarify this matter.

Michael S. Nelson SPR23/3115 Page 4 January 10, 2024 Conclusion Accordingly, the School is ordered to provide a response to Ms. LeClair 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Kathleen LeClair