Commonwealth Transparency v. Hamilton-Wenham Regional School District (SPR 20240953)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 11, 2024 SPR24/0953 Superintendent Eric Tracy Records Access Officer Hamilton-Wenham Regional School District 5 School Street Wenham, MA 01984 Dear Superintendent Tracy: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the Hamilton-Wenham Regional School District (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 10, 2024, the requestor sought “[a]ll invoices paid to any legal service provider for the time period, January 1, 2019 – March 10, 2024.” Previous Appeal This request was the subject of a previous appeal. See SPR24/0942 Determination of the Supervisor of Records (April 1, 2024). In my April 1st determination, I closed SPR24/0942 in light of the School providing a written response on March 27, 2024, including a fee estimate. Objecting to the fees, the requestor appealed, and this case 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 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 Eric Tracy SPR24/0953 Page 2 April 11, 2024 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. Fee Estimates - Municipalities 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 2 (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). The School’s March 27th Fee Estimate In its March 27, 2024 response, the School provides a fee estimate totaling $750 for a total of 30 hours. The School provides the following information in support of its fee estimate: [T]he School District reserves the right to assert exemptions or privileges with respect to any records responsive to your request. Such exemptions or privileges may include, but are not limited to: 1. Exemption (a) - documents that are specifically or by necessary implication exempted from disclosure by statute; 2. Exemption (d) - inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the School District; 3. The attorney-client privilege; and/or 4. Any other applicable exemption or privilege. . . .

Superintendent Eric Tracy SPR24/0953 Page 3 April 11, 2024 Search time by the lowest-paid School District employee capable of searching for and compiling responsive records: 30 hours at $25.00 per hour, for a total of $750. Additionally, in an email to this office and the requestor on March 29, 2024, the School further explains the following: The initial request sent was found, after receiving a second request, in junk mail. I respond[ed] to the 3/27/2024 request... The records sought are not electronic and not kept in a digital format. Each invoice is approved by warrant by the school committee and filed away by warrant number in paper format. In order to produce these records, we will need at least the 20 extra days requested and need to pay someone in my office to go through 5-years of school committee warrants, thumb through each warrant, locate the invoices for legal service providers, assemble the invoices, redact the invoices, scan them to be sent/supplied digitally and refile the invoices with the correct warrant. I believe this places an undue burden on my office as we are a small, 1670 students school district with limited central office staff. G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where the requestor submitted a request by email on March 10, 2024, and the School did not provide a good faith estimate of fees until March 27, 2024, I find that the School has not met its burden to demonstrate that its March 27, 2024 response was in compliance with G. L. c. 66, § 10(b). Accordingly, the School may not charge a fee for public records under G. L. c. 66, § 10(e). To the extent possible, records must be provided on a rolling basis. Conclusion Accordingly, the School is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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.

Superintendent Eric Tracy SPR24/0953 Page 4 April 11, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency