Jorge Teixeira v. Hopkinton, Town of - Public Schools (SPR 20171200)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 8, 2017 SPR17/1200 Cathy MacLeod, Ed.D. Superintendent of Schools Hopkinton Public Schools 88 Hayden Rowe Street Hopkinton, MA 01748 Dear Superintendent MacLeod: I have received the petition of Jorge Teixeira appealingthe response of Hopkinton Public Schools (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, in a letter dated August 18th, Mr. Teixeira requested electronic copies of "[s]ettlement agreements entered into by your School District with parents and guardians, from January 1, 2011 through today, relative to the provision of special education services and/or educational placement(s) for students with disabilities, redacted of all personally identifying information." The School responded to his request with a fee estimate for the provision of the responsive records. Mr. Teixeira filed an appeal with this office, rejecting the nature of the School's response. Fee estimates 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. I d. A maximum fee of five cents per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 1 0( d)(i). Municipalities may not assess a fee for the first two 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, § 1 0( 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, § IO(d)(iv). 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

Cathy MacLeod, Ed.D. SPR17/1200 Page2 September 8, 2017 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). G. L. c. 66, § lO(d)(iii); see also 950 CMR 32.06(4). Fees for copies Under the current Regulations, a custodian of records may assess a maximum fee of five cents per page for a black and white single or double-sided photocopy of a public record. 950 C.M.R. 32.07(2). A copying fee shall not be assessed for electronic copies. Id. A records access officer shall presume a requester prefers electronic copies and must provide electronic records in native form when possible. 950 C.M.R. 32.07(1). The School's August 28th estimate included a fee for "~79 copied pages@ .05/page (necessary to copy original records in order to redact without irreparably damaging original records)." Mr. Teixeira specifically requested copies in "electronic form." The School must comply with this request unless the School shows electronic form copies are not available. 950 C.M.R. 32.07(1). Please be advised that the School cannot charge a fee for electronic copies. 950 C.M.R 32.07(2)(f). The copies the School claims to require are made as part of the redaction process and shall be considered as such. It is unclear whether the School can perform the redactions electronically. Fees to search for, compile, segregate, redact or reproduce a record request In addition to the copying fee, the Regulations provide that in cases where necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § 10 (d ); see also 950 C.M.R. 32.07(2). Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. A municipality may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, § lO(d); see also 950 CMR 32.06(4). The School's fee estimate indicated it will require "5 hours to search, segregation and redaction time ( 15 minutes/d ocument), Special Education Executive Secretary's wage ($26.62/hour, capped at $25.00/hour)" and "1.5 hours document review and correspondence preparation time, Director of Student Services wage ($63.75/hour, capped at $25.00/hour)" to provide the requested records. The School has not explained with specificity why five hours of "search, segregation" and "redaction time" is necessary to provide responsive records. In addition, it is unclear why the School requires a separate "search, segregation and redaction" assessment from a "document review and correspondence preparation time." The School must clarify how the "document review and correspondence preparation time" differs from the "search, segregation" and "redaction time."

Cathy MacLeod, Ed.D. SPR1711200 Page 3 September 8, 2017 Further, the School has not explained whether it used the hourly rates of the lowest paid employees capable of performing the task. See 950 C.M.R. 32.07(2)(i). The School has not identified and explained the applicability of any law requiring segregation or redaction which would permit the School to assess fees for segregation and redaction. See G. L. c. 66, § lO(d); see also 950 CMR 32.06(4). I am not aware that our office has received a petition to assess a fee for segregation or redaction; therefore, the School may not charge the requester a fee for segregation or redaction. See 950 C.M.R. 32.07(2)(m)(4). Accordingly, I find the School must revise its fee or provide a further explanation of how the fee assessed is consistent with G. L. c. 66, § lO(d). Conclusion Subsequent to the intervention by a staff member of the Public Records Division, I learned that a representative from the School intends to provide Mr. Teixeira with a supplemental response to his request. Accordingly, I will consider this administrative appeal closed with the proviso that the School provide Mr. Teixeira with the response within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Teixeira may appeal the substantive nature of the School's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Jorge Teixeira Nancy Campany, Esq.