Kathleen LeClair v. Old Rochester Regional School District (SPR 20240164)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 31, 2024 SPR24/0164 Michael S. Nelson Superintendent Old Rochester Regional School District 135 Marion Road Mattapoisett, MA 02739 Dear Superintendent 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 19, 2023, Ms. LeClair requested, “copies of all contracts, agreements and invoices by and between the ORR School District and Center for Responsive Schools (f/k/a Northeast Center for Responsive Schools) and Fly Five.Flyfivesel.org[.]” The School provided a response on January 10, 2024, which included a fee estimate. Unsatisfied with the response, and objecting to the fees, Ms. LeClair petitioned this office and this appeal, SPR24/0164, 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 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. 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

Superintendent Michael S. Nelson SPR24/0164 Page 2 January 31, 2024 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 January 10th response In its January 10, 2024 response, the School provides a fee estimate of $25.00 for 1 hour of work at $25.00 an hour spent “searching for and compiling records in response to [the] 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

Superintendent Michael S. Nelson SPR24/0164 Page 3 January 31, 2024 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 1 hour 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 1 hour x $25/hour, for a total of $25.00. Current Appeal In her appeal petition, Ms. LeClair states, “[t]here is reason to believe the requested contract was signed in May or June of 2023, therefore should be quickly located and easily produced.” In this case, where the School has explained that it will charge for search and reproduction of the records, and has explained the amount of time required to search for records, and confirmed that the lowest paid individual with the necessary skill is paid more than $25 per hour, I find the School has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). Conclusion Accordingly, I will consider this administrative appeal closed.

Superintendent Michael S. Nelson SPR24/0164 Page 4 January 31, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Kathleen LeClair