Russell Williston v. Nashoba Regional School District (SPR 20243096)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 19, 2024 SPR24/3096 Ross Mulkerin Business Manager Records Access Officer Nashoba Regional School District 50 Mechanic Street Bolton, MA 01740 Dear Mr. Mulkerin: On November 14, 2024, this office received your petition on behalf of the Nashoba Regional School District (School/District) requesting permission to assess fees for time spent segregating and redacting responsive records. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the District furnished a copy of the petition to the requestor, Russ Williston. G. L. c. 66, § 10(d)(iv)(2). On October 7, 2024, Mr. Williston requested “[a]ll complaints received by the District regarding [a named individual].” Prior Appeal This request was the subject of a prior appeal. See SPR24/2866 Determination of the Supervisor of Records (October 31, 2024). Please refer to the determination in SPR24/2866 for analysis of this matter. Petition to assess fees – Municipalities The 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). 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

Ross Mulkerin SPR24/3096 Page 2 November 19, 2024 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 or to charge in excess of $25 an hour for the provision of public 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 understanding 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Current Petition In its petition, the District requests “[t]he Supervisor allow it to charge a fee of $25 per hour to segregate and redact potentially responsive records.” In an email to this Division on November 15, 2024, Mr. Williston objects to the District’s petition to assess fees, arguing “...[I] am skeptical that the District does not already routinely

Ross Mulkerin SPR24/3096 Page 3 November 19, 2024 segregate complaints about faculty, or that the District has 722 complaints about an active faculty member. The District’s initial response on 10/18 did not meet the requirements of the public records law, and after appeal and determination SPR24/2866, the distriction was required by the Public Records Division to respond in manner consistent with the law. Where the law reads, [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), [I] am skeptical that the law allows the District to further delay the response with a fee petition.” Conclusion The District submitted its petition on November 14, 2024, more than ten business days after receipt of the request. In light of the fact that the District has not demonstrated that it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(g). Sincerely, Manza Arthur Supervisor of Records cc: Russ Williston