Commonwealth Transparency v. Masconomet Regional School District (SPR 20241620)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 12, 2024 SPR24/1620 Jacqueline Bolduc Executive Assistant to the Superintendent Masconomet Regional School District 20 Endicott Road Boxford, MA 01921 Dear Ms. Bolduc: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the Masconomet 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 April 11, 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 11, 2024, the requestor modified the scope of the request and sought the same records as the April 6th request but for the period of “January 1, 2016 through April 5, 2024[.]” Prior Appeals This request was the subject of prior appeals. See SPR24/1208 Determination of the Supervisor of Records (May 6, 2024) and SPR24/1311 Determination of the Supervisor of Records (May 14, 2024). In my May 14th determination, I found that the School must provide a good faith estimate for the production of the additional records from 2016-2017 per the modified request. 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 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

Jacqueline Bolduc SPR24/1620 Page 2 June 12, 2024 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. 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 estimate – 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 (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 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 May 15th response In its May 15, 2024 response, the School gave an estimate of $150.00 and stated, “[t]he [School] may be in possession of records that are responsive to your request. Before these records can be provided, they will need to be located and/or downloaded and then individually reviewed by District personnel to determine whether they may need to be withheld entirely or redacted under exemptions to the Massachusetts Public Records Laws or due to other appropriate state and federal laws. The extent to which the requested records may be withheld or redacted will not be known until the process of assembling and reviewing these materials is completed.

Jacqueline Bolduc SPR24/1620 Page 3 June 12, 2024 Under the Massachusetts Public Records Law, municipalities may charge for the labor required to comply with a request.” Additionally, the School broke down its fee estimate as follows:  3 hours of Information Technology Staff to search for and prepare requested documents and records  3 hours @ $25 per hour = $75, less first two hours @ $50 = $25  4 hours of Central Office Staff to search our systems and paper files for requested documents and records  4 hours @ $25 per hour = $100 Segregation and Redaction time allowable by statute. Review emails, records and documents at rate of 100 per hour @ $25 per hour This fee estimate of 100 that are responsive to your request once the search has been completed may change. Any additional fee based on the actual number of responsive emails, documents and records must be paid before records will be released. Total Estimate: [1.] Fees for Information Technology for emails= $25 [2.] Fees for Central Office staff search of records and documents = $100 [3.] Fees for segregation and redaction of emails, documents and records = $25 Total Amount due now $150 Current appeal In his appeal, the requestor states, “[the School] has failed to quantify the actual number of responsive records. [The School] has failed to provide proper estimates for searching for responsive records, 7 hours to search is exorbitant, unfounded and inconsistent with the Massachusetts public records law. [The School] has failed to specifically state any viable legal exemption to entitle them to charge for segregation or redaction of responsive records.” Although the School has estimated that the process of compiling, reviewing, and preparing requested records requires 8 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. 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, the School must clarify if the redactions are required by law, and state the applicable statutes, if any. Pursuant to 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). The School must clarify this.

Jacqueline Bolduc SPR24/1620 Page 4 June 12, 2024 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: Commonwealth Transparency