Jennifer A. English v. Marlborough, Town of - Public Schools (SPR 20160182)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 23, 2016 SPR16!182 Mr. Richard P. Langlois Superintendent of Schools Marlborough Public Schools 1 7 Washington Street Marlborough, MA 01752 Dear Superintendent Langlois: I have received the petition of Jennifer A. English appealing the response of the Marlborough Public Schools (School District) to a request for public records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. English requested a copy of settlement agreement entered into by the School District with parents and guardians, from January 1, 2010 through January 30,2016, relative to the provision of special education services and/or disabilities, redacted of all personally identifying information. On March 1, 2016, the School District provided Ms. English with a written fee estimate. Ms. English appealed the School District's charge of segregation at the hourly rate of the School Districts' Legal Counsel. Failure to provide timely response and provide records The School District failed to provide a timely response to Ms. English. Your March 1, 2016 written estimate was provided twenty-nine (29) days after Ms. English's request. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days ofthe request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. Fees for search and segregation ofp ublic records A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($1 0. 00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Richard P. Langlois, Ed.D. SPR16/182 Page 2 March 23, 2016 to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of five cents ($.05) per page for a black and white single or double-sided photocopy of a public record. See 950 C.M.R. 32.06(1 )(a). The Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and re-file public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The costs for search and/or segregation must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). The School District has charged for searching for and segregating records. The estimate states the School District is charging for search time at the lowest paid administrative office support staffs rate, which is $24.60 per hour, and I find that this hourly rate is reasonable. In your estimate you list that the following costs associated with the searching, redacting, segregating, photocopying andre-filing of such written records to be a total cost of $1,265.90. Please be advised, redacting and segregating are the same tasks. Segregation is the time used to redact exempt data or content from a record. Therefore, the School District must revise its estimate for the segregation time that was assessed. See 950 C.M.R. 32.03. Written, good faith fee estimate Your estimate did not include the cost of providing copies of the settlement agreements; however your estimate advised Ms. English that the School District will provide her with costs of photocopies once the School District determines the number of pages responsive to her request. Please note that the section of the Regulations associated with fees for copies was amended on February 29, 2016. From that date forward records custodians may only charge a maximum fee of five cents ($.05) per page for both 8 Yz x 11" black-and-white paper and computer-generated cop1es. Your estimate for "segregation/redaction" of personally identifiable information of parents and children in the settlement agreements at an hourly rate of two hundred fifteen ($215.00) dollars per hour, the hourly of the School District's Legal Counsel is not reasonable. The Regulations mandate that "Segregation time," which is the time it takes to redact exemption data or information from the content of a record must be assessed at the lowest hourly rate of the individual capable of performing the segregation/redactions. There is no provision in the Public Records Law or its Regulations that mandates segregation to be performed by an attorney.

Mr. Richard P. Langlois, Ed.D. SPR16/182 Page 3 March 23,2016 In most cases, and with some guidance, a much lower paid employee within the School District's office is capable of segregating/redacting exempt data from a settlement agreement. A records custodian must justify why a particular individual at a higher hourly rate is the only individual who can perform the task of segregation. Whether it is reasonable that a higher paid individual where the records are normally located is the only person capable of performing the task is determined on a case-by-case basis. Therefore, I find that the School District has not met its burden of proving that the School District's Legal Counsel is the only individual capable of segregating exempt data from the records. I find that the School District must revise the hourly rate for segregation. Order The School District is hereby ordered, within ten (10) days ofthis order, to provide Ms. English with a revised written, good faith estimate, prepared in a manner consistent with this order, the Public Records Law and its Regulations. Ifthe School District maintains that any portion ofthe responsive records are exempt from disclosure it must, within ten (10) days provide to Ms. English a written explanation, with specificity, how a particular exemption applies to each record or each portion of a record. 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. A copy of any such response, including a revised estimate must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. To assist the School District in responding to requests for public records, the School District is advised to review our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/ prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on t e Public Records Law upon request. Please contact my office directly at the teleph urn er below for further information. cc: Ms. Jennifer A. English