Marie Harpin v. North Adams, City of - Public Schools (SPR 20250325)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 14, 2025 SPR25/0325 Carrie Burnett Grants, Special Projects & Procurement Officer North Adams Public Schools 10 Main Street North Adams, MA 01247 Dear Ms. Burnett: I have received the petition of Marie Harpin appealing the response of the North Adams Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 26, 2025, Ms. Harpin requested “the 196-page Greylock School Design Development Package used by the School Building Committee at the January 21, 2025 Meeting.” The School provided a response on January 30, 2025, which included a fee estimate. Unsatisfied with the response, and objecting to the fees, Ms. Harpin petitioned this office and this appeal, SPR25/0325, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Carrie Burnett SPR25/0325 Page 2 February 14, 2025 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. Fees - 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 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 January 30th response In its January 30, 2025 response, the School provided a fee estimate of $150.00. The School explains that redactions to the records will likely have to be made under Exemption (n) of the Public Records Law and breaks down the fee estimate as follows: As the safety and security of the young children attending our schools is our utmost priority, we will be redacting elements of the detailed design document to mitigate any potential risk to the well-being of the children in our care. Exemption (n) applies to records, including but not limited to blueprints, plans, policies, procedures, and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security, or other infrastructure within the Commonwealth. In accordance with G.L. c. 4, § 7(26)(n), disclosure of such records, in the reasonable judgment of the records custodian, is likely to jeopardize public safety or cybersecurity and may therefore be subject to redaction.

Carrie Burnett SPR25/0325 Page 3 February 14, 2025 Second, while we have decided not to assign any fees to you for the copying of these documents per se, because we can upload the information to the email address you provided… please be advised that in compliance with 950 CMR 32.07 and the Public Records Law we will be assessing a fee for the staff time required to fulfill your request. The work required to retrieve, review, and redact the records is estimated to take approximately six (6) hours. This work will need to be performed by [a named individual], Administrative Assistant to the Superintendent/School Committee, who is the lowest-paid employee capable of completing the task. As the hourly rate of that employee exceeds a rate of $25.00 per hour, you will only be charged the capped hourly rate of $25.00 per hour. The total estimated cost for processing your request is $150.00. Because of the estimated cost for your records request, payment in advance of the redactions and production is required. Additionally, in an email sent to this office on February 13, 2025, subsequent to the opening of this appeal, the School stated, “[u]nder the law, a public entity may charge a fee of up to $25 per hour for processing such requests… In this case, the assessed fee is based on at least six hours of work, which translates to approximately two minutes per page. In my experience with the Public Records Division, this falls well within the range of what has been deemed reasonable.” Current Appeal In her appeal petition, Ms. Harpin states, “[t]he Records Officer denied my request but offered a redacted document with a $150 charge which I commenced to appeal based on said document distribution to Committee Members…” Although the School has estimated that the process of retrieve, review, and redact requested records requires 6 hours to produce responsive records, it is not clear from the School’s estimate how much time is allocated to search, and how much time is allocated for segregation and/or redaction of the records. Further, the School must provide additional information regarding the tasks involved in producing these records. 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 6 hours includes the first free 2 hours to search for, compile, segregate, redact or reproduce records. 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). Further, although the School claims that it is assessing a fee for redactions under Exemption (n), it is unclear how the School can assess a fee for redactions under Exemption (n)

Carrie Burnett SPR25/0325 Page 4 February 14, 2025 in this matter. Under 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). I am not aware that the School has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, it is uncertain whether the fees include time to redact records under Exemption (n). The School must clarify this. I encourage Ms. Harpin and the School to communicate in order to facilitate producing records efficiently and affordably. 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 Ms. Harpin 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: Marie Harpin Nancy Rauscher