David Fitzgerald v. Medway, Town of - Public Schools (SPR 20240524)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 1, 2024 SPR24/0524 Patricia Leonhardt Records Access Officer Medway Public Schools 45 Holliston Street Medway, MA 02053 Dear Ms. Leonhardt: I have received the petition of David Fitzgerald appealing the response of the Medway Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 6, 2024, Mr. Fitzgerald requested: all communications sent or received by the school committee members regarding the bus policy, bus fee proposal, transportation policy, or any other communication related to busses and transportation… all communications including paper, emails[,] Facebook or other social media posts, text messages, private or direct messages via social media, or any other form of electronic communications. The date range for this request is September 1st 2023 to… February 6th 2024. The School provided a response on February 15, 2024, which included a fee estimate. Unsatisfied with the response, and objecting to the fees, Mr. Fitzgerald petitioned this office and this appeal, SPR24/0524, 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). 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

Patricia Leonhardt SPR24/0524 Page 2 March 1, 2024 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 February 15th response In its February 15, 2024 response, the School provided a fee estimate of $1,122.50 for 42.9 hours of work at $25.00 an hour. The School explains that redactions to the records will likely have to be made under Exemptions (a), (c), (o), and (p) of the Public Records Law and the attorney-client privilege. The School explains:

Patricia Leonhardt SPR24/0524 Page 3 March 1, 2024 In the most-recent decennial U.S. Census, the Town of Medway has a population of 13,115 and, as such, [the School] may charge a fee for all time involved in responding to [Mr. Fitzgerald’s] request… Given the nature and complexity of the exemptions, privileges, and confidentiality requirements cited above, and the wide-ranging and private nature of the related information, the lowest paid employee of [the School] who could continue the search for, compilation, review, segregation, redaction and reproduction of records and make judgments as to which information is public and which information is exempt and must be redacted would be a member of [the School]’s central office staff, all of whom are compensated at rates exceeding $25.00 per hour. As such, any time spent completing the response process beyond 2 hours will be charged at the maximum rate of $25.00 per hour. Additionally, the School breaks down the fee estimate as follows: [School] employees have already spent a total of more than 2 hours of total employee time searching for and compiling records in response to your request… [The School] estimate[s] that it will take at least 2 additional minutes per record to fully search for, compile, review, segregate, redact, and reproduce each record in accordance with applicable law. This has and/or will involve without limitation saving the records already located to a single file, manually reviewing each record to determinate whether it is in fact responsive, redacting any exempt information with the labeling and explanation required by law, and then saving this document to another file for production to [Mr. Fitzgerald]… [The School] estimate[s] the time will be comprised on average of approximately 5% search and compilation time, 80% segregation time, 10% redaction time, and 5% reproduction time for each record. For the approximately 1,287 total remaining records that have been located, it would take an estimated additional 42.9 hours of total employee time to complete [the School]’s search for, compilation, review, segregation, redaction and reproduction of all requested records, for a total initial fee of $1,122.50 [42.9 hours + 2 hours) x $25/hr)]. Current Appeal In his appeal petition, Mr. Fitzgerald states, “I also asked if [the School] would be willing to suggest a reasonable accommodation to my request to help to make it more efficient, and to reduce the cost. I received a response that they were unwilling to suggest a modification to my request… I have no interest in taking unnecessary time away from the employees of Medway Public Schools. I am more than happy to modify my request to limit the amount of time needed to process it. I feel as if the RAO is not willing to assist me with my requests, to narrow down the search for responsive records. Furthermore, if my current request is burdensome, and is going to require more time to process than 10 business days, the RAO should be open and upfront about the timeframe required before I pay the fees which they are estimating…”

Patricia Leonhardt SPR24/0524 Page 4 March 1, 2024 Although the School claims that it is assessing a fee for redactions under Exemptions (a), (c), (o), and (p), it is unclear how the School can assess a fee for redactions under Exemption (c), (o), and (p) in this matter. Under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). I am not aware that the School has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, although the School may assess a fee for redactions required by law as in Exemption (a) and the attorney-client privilege, it is uncertain whether the fees include time to redact records under Exemptions (c), (o), and (p). The School must clarify this. Modification In his appeal, Mr. Fitzgerald stated, “I am more than happy to modify my request to limit the amount of time needed to process it.” In light of Mr. Fitzgerald’s statement, this office encourages Mr. Fitzgerald and the School to communicate in order to facilitate producing records efficiently and affordably. Mr. Fitzgerald may wish to narrow the scope of the request or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The School must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(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 records sought more efficiently and affordably). Conclusion Accordingly, the School is ordered to provide Mr. Fitzgerald with a response to the 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: David Fitzgerald