Katherine & Patrick Gaughen v. Hingham, Town of - Public Schools (SPR 20161126)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 16, 2016 SPR16/1126 Dorothy H. Galo, Ph.D. Superintendent of Schools Town of Hingham-Public Schools 220 Central Street Hingham, MA 02043 Dear Dr. Galo: I have received the petition of Katherine and Patrick Gaughen appealing the response of the Town of Hingham- Public Schools (Schools) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, the Gaughens requested a copy of settlement agreements entered into between the Schools and parents from January 1, 2012 to the present (October 24, 2016, date of the request), relative to the provision of special education services and educational placement(s) for students with disabilities, redacted of all personally-identifiable information. The Schools responded that it will provided only the settlement agreements where an out of-district placement has occurred, citing Champa v. Town of Weston, 473 Mass. 86 (2015). The Schools denied the request for "in district" or any other settlement agreement regarding special education services or educational placements for students with disabilities, citing Exemptions (a) FERPA and Massachusetts Student Record Laws, and Exemption (c) of the Public Records Law. The Schools also provided a written, good faith estimate for the cost of providing six (6) redacted out-of-district settlement agreements at a total cost of $474.96. The Gaughens 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). 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

Dorothy H. Galo, Ph.D. SPR16/1126 Page 2 December 15, 2016 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 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. Exemption claims- (a) and (c) The Schools claim that settlement agreement regarding special education services other than an out-of-district settlement falls outside the scope of the Supreme Judicial Court's (Court) limited ruling in Champa. You state that the Court did not address agreements which do not pertain to out-of-district private educational institutions; hence the request seeks records beyond the Court's interpretation of permissible disclosure under the public records law. The Schools cite federal education and state education laws as they operate through Exemption (a), and privacy rights of students who are the subjects of agreements for special education services pursuant to the second clause of Exemption (c). The Schools are withholding the "in-district" agreements in their entirety and fail to prove why these agreements cannot be redacted of all personally-identifiable information under the statutes claimed and disclosed. I find that the Schools have not met its statutory and regulatory obligation under the Public Records Law. Fees andfee estimates A custodian of records may charge for the costs of search, segregation and copies as long as the fees are reasonable and in compliance with the Public Records Law Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). If there are any fees associated with a response a written, good faith estimate must be provided. 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

Dorothy H. Galo, Ph.D. SPR16/1126 Page 3 December 15, 2016 exceed ten dollars ($10.00), custodian ofrecords shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. The Regulations provide that in cases where search or segregation time is necessary a custodian ofrecords may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § IO( a). A custodian of records may also charge for the cost of copies where the requester has asked to be provided with a copy. Under the Regulations, a custodian ofrecords may assess a maximum fee of five cents ($.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). You based the written, good faith estimate on twelve (12) hours for "segregation, review, redaction and review by a senior administrator to protect the privacy of the subjects of the six (6) settlement agreements at a cost of $474.96." The November 2 letter states that "the lowest paid person who could perform the task of deciding which information meets the legal criteria for redaction in this very sensitive area of student privacy rights, is the Special Education Director or the District's Superintendent. As such, while portions of the review and redaction will be conducted by an administrative assistant, the Special Director of the District's Superintendent will participate in the redaction process." The Schools have failed to draft a proper estimate, The estimate states that the Schools will "segregation, review, redaction and review." Your estimate contains redundancy in describing the task of segregation. Please be advised that "Segregation" involves the time to review a record and segregate/redact exempt material from the content of the record. Furthermore, the Schools have failed to even show the hourly rate in its estimate, which is a requirement when providing a requester with a written, good faith estimate. A calculation by this office reveals that the Schools are charging an hourly rate of $39.58 to conduct segregation of the agreements. I see no reason why the Schools cannot assess "segregation" at the administrative assistant's hourly rate, and have the Special Education Director or Superintendent check for accuracy at no charge to the Gaughens. It is a rare case where the highest paid individuals are the only employees who can carry out the task. The Schools are also assessing twelve hours, which is two (2) per agreement to segregate exempt material. An review by this office of "out-of-district" settlement agreements from several towns in the Commonwealth on appeals shows that the agreements are generally between 4-8 pages long. I find two (2) hours per agreement to segregate exempt material is unreasonable.

Dorothy H. Galo, Ph.D. SPR16/1126 Page 4 December 15, 2016 Order I find the Schools have failed to properly respond to a request for public records. Accordingly, the Schools are hereby ordered to provide the Gaughens with a revised written good faith estimate and detailed response to support its exemption claims to withhold the settlement agreements for in-district education placements, within ten (10) days and 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. Superv sor of Records cc: Katherine and Patrick Gaughen