Kendra Steucek v. Ashburnham-Westminster Regional School District (SPR 20170455)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 4, 2017 Joseph T. Bartulis, Esq. Fletcher Tilton, P.C. 11 370 Main Street, li Floor Worcester, MA 01608 Dear Attorney Bartulis: I have received your petition on behalf of the Ashburnham Westminster School District (School) to charge for time spent segregating or redacting public records in responding to requests made by Kendra Steucek for specific emails. G. L. c. 66, § lO(d)(iv). As required by law, the School furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv)(2). The School is also seeking relief from its obligation to produce responsive records. G. L. c. 66, § 10(C ) . The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose; or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § lO(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. Id. Analysis The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. Id. It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) 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

Joseph T. Bartulis, Esq. Page 2 April 4, 2017 if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Considerations The Supervisor is required to consider the public interest served by limiting the cost of public access to the records. While the public benefits by minimal fees, if any, for the provision of public records, the Public Records Law allows for municipalities to recoup certain costs associated with responding to public records requests. G. L. c. 66, § lO(d). Given the nature of this request, the public interest is not limited by the assessing of search and segregation fees. Additionally, the Supervisor must consider the financial ability of the requestor to pay the additional or increased fees and any other relevant extenuating circumstances. This office has not received any documentation relative to the financial inability of the requestor to pay. The School's ability to assess a fee for segregation and redaction In the School's petition dated March 27, 2017 you explain Ms. Steucek requested emails that contain certain terms, including her name, sent to and from particular employees for a specific time period. You indicate Ms. Steucek submitted multiple similar requests, the most recent dated February 27, 2017. The School is requesting clarification regarding its right to charge a fee for the time spent to segregate and redact responsive records. You explain "[i]t is reasonable to think that, because the requested documents include emails from nine (9) individual District employees with references to either 'SEPA C,' or some portion of Mrs. Steucek's name, they could very well contain information pertaining to individual students." The School further indicates that because the responsive emails are from employees of the School District and Committee, "it can only be assumed that these emails may contain personally identifiable information relating to other students within the District." Therefore, the School explains "every email must be reviewed to ensure that the District is complying with the federal legal mandates expressed in FERPA, 20 USC 1232g et seq. and 34 CPR 99.12(a), as well as Massachusetts law, as expressed in 603 CMR 23.00 et seq. and M.G.L. c. 71, §§ 34D, 34E." Given these records likely include information relating to student record information that is not a public record under the statutes cited above, the School has met its burden to explain how the request could not prudently be completed without redaction or segregation under applicable statutes. See G. L. c. 66, § lO(d)(iv). Therefore, the School may assess a fee for the time spent to segregate and redact the requested records. Fee estimate In a fee estimate dated February 28, 2017, the School is seeking to charge a total fee of

Joseph T. Bartulis, Esq. Page 3 April 4, 2017 $1,512.50 for the production of responsive records. This fee is comprised of a rate of "5 .16 Mb/hour," totaling 60.5 hours at an hourly rate of $25.00. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § IO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(d)(i). Municipalities may not assess a fee for the first 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 hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(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, § lO(d)(iv). See G. L. c. 66, § IO(d)(iii); 950 CMR 32.06(4). The School has not met its burden in explaining why a rate of "5.16 Mb/hour," is necessary for searching, reviewing, and redacting the emails. It is also unclear how many emails are responsive. The School also did not explain whose hourly rate is being used in this estimate. Request for relieff rom obligation to produce responsive records In its March 2ih petition the School also "requests alternative relief from the records request submitted by Mrs. Steucek." The basis of this request is that the School believes "that the records request is intended to harass certain District employees named in the request, particularly Mrs. Kathleen Veroude" and "the records request was motivated by a misguided suspicion that Mrs. Veroude is being 'slandered' by District employees." If upon reviewing a petition from a records access officer for an extension of time to produce responsive records the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. G. Le. 66 § IO(c). Based on the information provided in the March 2ih petition, I find the School has not met its burden to establish that relief of its obligation to respond to Ms. Steucek' s

Joseph T. Bartulis, Esq. Page 4 April 4, 2017 request is appropriate at this time. However, if the School requires additional time to produce the responsive records, it may submit a petition seeking an extension of time in accordance with G. L. c. 66 § lO(c). Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its March 27th petition, the School is permitted to charge for time spent segregating and redacting the requested records. However, the School has not demonstrated the need for 60.5 hours to produce these records. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). When preparing a fee estimate for the provision of the requested records, the School must reduce the amount of time charged for reviewing the records, or provide more detail explaining why this amount of time is necessary. The estimate must also explain whose hourly rate is being used and why it is necessary to assess this rate. Ms. Steucek may appeal the School's fee estimate within 90 days. See 950 C.M.R. 32.08(1). Please note, the requester has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G.L. c. 66, § lOA. Sincerely, illJw»_~ Rebecca S. Murray Supervisor of Records cc: Kendra Steucek Dr. Gary Mazzola