Jeffrey R. Turco v. Marblehead, Town of - Public Schools (SPR 20240196)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 30, 2024 SPR24/0196 Michelle Cresta Records Access Officer Marblehead Public Schools 9 Widger Road Marblehead, MA 01945 Dear Ms. Cresta: On January 23, 2024, this office received your petition on behalf of the Marblehead Public Schools (School) seeking permission to charge for time spent segregating or redacting responsive records, as well as a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the School furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On January 12, 2024, Attorney Jeffrey Rosario Turco requested: [1.] All electronic mail messages to or from a Marblehead Public Schools electronic mail delivery system which references [a named individual] for the time period running from June 1, 2021 through January 11, 2024. [2.] All communications to or from the Marblehead Public Schools which reference [a named individual] for the time period running from June 1, 2021 through January 11, 2024. [3.] All text messages to or from a member of the Marblehead Public Schools which reference [a named individual] for the time period running from June 1, 2021 through January 11, 2024. [4.] All communications related to any complaints about or against [a named individual] for the time period running from July 1, 2022 through January 11, 2024. [5.] A copy of the contract between KM Education Law and the Marblehead Public Schools executed in or around October 2022. [6.] A copy of the scope of services to be provided by KM Education Law pursuant to said contract. [7.] A copy of all communications to and from KM Education Law and the Marblehead Public Schools for the period running from October 1, 2022 through January 11, 2024. 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

Michelle Cresta SPR24/0196 Page 2 January 30, 2024 [8.] To the extent not covered by the above requests, a copy of all communications, electronic mail messages, text messages, social media private messages between any member of the Marblehead School Department and/or Marblehead School Committee which references [a named individual] for the period running from June 1, 2021 through January 11, 2024. [9.] A complete, unredacted copy of the KM Education Law report issued pursuant to the October 2022 contract with the Marblehead Public Schools. [10.] All communications related to any complaints about or against [a named individual] for the time period running from January 1, 2023 through January 11, 2024. [11.] All communications related to any complaints about or against [a named individual] for the time period running from January 1, 2023 through January 11, 2024. [12.] A list of people who filed a public records request regarding [a named individual] or the Marblehead public schools soccer program from March 1, 2023 through January 11, 2024. [13.] All communications from or to [a named individual] related to the Marblehead public schools soccer program from March 1, 2023 through January 11, 2024. Petition to Assess Fees 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). 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.

Michelle Cresta SPR24/0196 Page 3 January 30, 2024 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 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). Current Petition Subsequent to the opening of this petition, Attorney Turco modified the scope of his request. I encourage Attorney Turco and the School to continue to communicate directly in order to facilitate producing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Conclusion In light of the decision to modify the scope of the request, I find it is unnecessary to opine on the School’s fee petition at this time. Sincerely, Manza Arthur Supervisor of Records cc: Jeffrey Rosario Turco, Esq.