Ben Tobin v. Lenox, Town of - Public Schools (SPR 20243378)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 2, 2025 SPR24/3378 Melissa Falkowski Assistant Superintendent Lenox Public School District 6 Walker Street Lenox MA 01240 Dear Ms. Falkowski: I have received the petition of Ben Tobin appealing the response of the Lenox Public School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 4, 2024, Mr. Tobin requested: Any of [an identified individual’s] emails from the past two months that include the phrase IEP … [and] any emails or texts to from [an identified individual] that include [a specific name], PRS, complaint, rebuttal going back to September. The District provided a response on December 17, 2024. Unsatisfied with the response, Mr. Tobin petitioned this office and this appeal, SPR24/3378, was opened as a result. 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 (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 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

Melissa Falkowski SPR24/3378 Page 2 January 2, 2025 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 District’s December 17th Response In its December 17, 2024 response, the District stated: Municipalities with a population of 20,000 and under may assess a fee, including the first 2 hours, for time spent searching for, compiling, segregating, redacting and reproducing a requested record. 950 C.M.R. 32.07(2)(m). In this case, the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce the record requested is a salaried employee whose effective hourly rate exceeds $25 per hour. Notwithstanding that rate, a rate of $25 per hour will be used to calculate the following fee estimate. Search Time is the time needed to locate and identify, pull from the files, copy and reshelve or refile a public record. G. L. c. 4, § 7(26). Each page of the records you seek must be reviewed to determine which exemption or privilege applies. Segregation time “includes the time used to review records to determine what portions are subject to redaction or withholding under G. L. c. 4, § 7(26) or other legally applicable privileges. Redaction time includes the time to delete, or otherwise remove that part of a public record that is exempt from disclosure under G. L. c. 4, § 7(26) or other legally applicable privileges from non-exempt material. As a result, the District estimates a total of 10 hours for segregation and redaction. 10 hours multiplied by $25 per hour yields a fee estimate of $250. The actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process. The District will not begin to review the records you seek until it receives a check in the amount of $250. Please be advised that your fee estimate may be reduced if you narrow the scope of your request (i.e. the period of time for the records you seek). Although the District has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 10 hours of employee time, the District has not provided sufficient explanation of why 10 hours of employee time is necessary. The District must advise how many hours it requires to search and how many hours it requires to segregate and redact the records in order to comply with the records request. Additionally, the District must clarify how many pages of records it possesses, and how many minutes per page it will take to segregate and redact the responsive records.

Melissa Falkowski SPR24/3378 Page 3 January 2, 2025 Additionally, I find the District must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. As such, the District must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reasons discussed above, I find the District must revise its fee estimate or provide further explanation of how the fee of $250.00 assessed in its December 17th estimate is consistent with G. L. c. 66, § 10(d). This office encourages Mr. Tobin and the District to communicate further in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(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 the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion Accordingly, the District is ordered to provide Mr. Tobin 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. Mr. Tobin may appeal the substantive nature of the District’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Ben Tobin Sarah C. Spatafore, Esq.