Andrew McIsaac v. Quincy, City of - Public Schools (SPR 20161111)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor of Records December 13, 2016 SPR16/llll Kevin W. Mulvey, Esq. Deputy Superintendent City of Quincy - Public Schools 34 Coddington Street Quincy, MA 02169 Dear Attorney Mulvey: I have received the petition of Andrew Mclsaac appealing the response of City of Quincy - Public Schools (School) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Mclsaac requested "all Physician's Statement for Temporary Home or Hospitalization forms received by Quincy Public Schools during the 2015-2016 school year" (Request 1) and "all contracts between Education, Inc. and Quincy Public Schools signed during the 2015-2016 school year." (Request 2) The School responded in a letter dated December 2, 2016 in which it denied access to records responsive to Request 1 and provided a fee estimate for records responsive to Request 2. Mr. Mclsaac appealed. 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, § lO(c); 950 C.M.R. 32.08(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 town 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, § lO(c); see also District 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, § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a 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

Kevin W. Mulvey, Esq. SPR16/1111 Page 2 December 13, 2016 request for public records is expected to exceed ten dollars ($10.00), custodian ofrecords shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to 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 the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Request 1 Exemption (a) In the School's December 2 letter, it indicated its intent to withhold records responsive to Request 1 under G.L. c. 71, §34D as it operates through Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The School claims "these documents are considered student records as they identify students and contain student information." You also indicate the "statute also references student record regulations, 603 CMR 23.00 et seq., which specifically prohibits the disclosure of student record information to a third party without the specific, informed written consent of the eligible student." However, it is unclear how records responsive to Request 1, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § IO( a).

Kevin W. Mulvey, Esq. SPR16/1111 Page 3 December 13, 2016 The School must explain, with specificity, whether it is possible to redact any personally identifying information and provide any non-exempt, segregable portion of the records. Request 2 The School provided a fee estimate for the provision of records responsive to Request 2. A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 1O (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 ($10.00), custodian ofrecords shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the current Regulations, a custodian of records may assess a maximum fee of five cents ($.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). In addition to the copying fee, 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 refile 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 search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 1O (a). In his appeal petition, Mr. Mclsaac appears to only appeal the hourly rate provided in the School's fee estimate; he indicates his belief that "[t]he prorated fee of $19.74 per hour for search and segregation time does not represent the rate of the lowest-paid employee capable of performing these tasks." Although the School indicates this hourly rate "represents the hourly rate of the lowest-paid employee capable of performing the task," it is unclear what this employee's job title is and why he or she is the lowest-paid person capable of performing the task. I understand an attorney on my staff contacted you and provided a copy of the appeal file. You indicated the school will provide another response clarifying these matters. Conclusion Accordingly, I will consider this appeal closed with the proviso that the School provide Mr. Mclsaac a response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response 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.

Kevin W. Mulvey, Esq. SPR16/1111 Page 4 December 13, 2016 Supervisor of Records cc: Andrew Mclsaac