Commonwealth Transparency v. Peabody, City of - Public Schools (SPR 20241122)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2024 SPR24/1122 Marjorie A. Macarelli Records Access Officer Peabody Public Schools 27 Lowell Street Peabody, MA 01960 Dear Ms. Macarelli: I have received the petition of Open Commonwealth (“requestor”) appealing the response of the Peabody Public Schools (School/District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 6, 2024, the requestor sought the following for the period of January 1, 2018 through April 5, 2024: [1.] Any and all contracts, communications, or documents of any kind with [three specified terms] [2.] Any and all payments made to [three specified terms] [3.] Any and all conflict of interest documents for [three specified terms.] On April 12, 2024, the School responded, providing a fee estimate. Unsatisfied with the School’s response, the requestor petitioned this office and this appeal, SPR24/1122, was opened as a result. Fees Estimates - 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). 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

Marjorie A. Macarelli SPR24/1122 Page 2 April 30, 2024 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 April 12th response In its April 12, 2024 response, the School provided a fee estimate of $575.00 and stated the following: The District anticipates that this request will require approximately 25 hours of employee time, at a rate of $25.00 per hour, searching for, segregating, and redacting the records as required by law. The District estimates 10 hours of search time and 15 hours of segregation and redaction. Excluding the first two hours of work, pursuant to 950 CMR 32.07(2)(m), this would result in a fee of $575.00 (23 hours x $25.00/hour). This estimate is based on the time required to search for documents going back six years, and the detailed redactions required by law for each responsive document. Current Appeal In the appeal petition, the requestor states, “[t]here is no quantification of responsive records, there is no claim of exemption to justify any charges for either segregation or redaction. There is no quantification for why it would take 10 hours to search for records that many other districts have been able to search well within the 2-4 hour window of non-chargeable time.” Although the School has estimated that the process of compiling, reviewing, and preparing requested records requires 25 hours to produce responsive records, it is unclear why the School requires this much time to search and redact the responsive records. Particularly, it is unclear the number of records the School is looking to redact and the number of pages there are. It is additionally uncertain how many minutes per page the School requires to review the responsive records. The School must provide additional information regarding the tasks involved in the search process. Accordingly, the School must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, although the School has stated that the redactions are required by law, it has not stated the applicable statutes, if any. Pursuant to the Public Records Law, a fee may not be

Marjorie A. Macarelli SPR24/1122 Page 3 April 30, 2024 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). The School must clarify this. Further, the School’s fee estimate lacks confirmation that the rate per hour is of the lowest paid employee who is capable of performing the task(s). I encourage the requestor and the School to communicate further in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the parameters or include 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) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). 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 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: Open Commonwealth