Julie Hindes v. Manchester Essex Regional School District (SPR 20180171)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 23,20 18 SPR181171 Superintendent Pamela Beaudoin Manchester Essex Regional School District 36 Lincoln Street Manchester-by-the-Sea, MA 0 1944 Dear Superintendent Beaudoin: I have received the petition of Julie Hindes appealing the response of Manchester Essex Regional School (SchoolIMERSD) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on December 21,2018, Ms. Hindes requested a "complete copy of [her] child's student records . . . that are collected, maintained, or used by the school district." Ms. Hindes requested that these records include, "[alny and all student records from the Manchester Memorial Elementary School and the Manchester Essex Regional Middle School, including but not limited to all transcripts and temporary records, progress reports, assessments, evaluations, handwritten notations, meeting minutes, records of service delivery, monitoring documents, observation notes and reports, disciplinary records, written communication of any form between and among staff members, written communication of any form between [the School] staff and all outside personslschools/agencies, all emails in all servers used by [the School]." Also, the request included all teachers who accessed the student's file via Aspen login and all records referencing or referring to the student and hislher parents. On January 10,2018, the School responded to Ms. Hindes' request, providing a fee estimate. Subsequently, Ms. Hindes petitioned this office, appealing the fee estimate. SPR181171 was opened as a result. Fee - Municipalities 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, 5 10(d). The fees must Id. reflect the actual cost of complying with a particular request. 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, 5 10(d)(i). Municipalities may not assess a fee for the first (two) 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, 5 lO(d)(iii). Where appropriate, 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

Superintendent Pamela Beaudoin Page 2 February 23,20 18 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 Id. per hour. 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, 5 lO(d)(iv). Further, 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, 5 lO(d)(iv). See G. L. c. 66, 5 lO(d)(iii); 950 C.M.R. 32.06(4). The School's fee estimate On January 10,2018, the School provided a response to Ms. Hindes that included a fee estimate for the cost of segregating and redacting records. The School indicated that it identified approximately 5000 pages of emails that referenced or referred to the identified student. The School estimated that it took 20 hours segregating student records from public records. After segregation, the School indicated that it compiled approximately 105 pages of public records that will satisfy Ms. Hindes' request. The School estimates a fee of $505.25 including $0.05 per page for producing 105 pages of responsive records. Fees to search for, compile, segregate, redact or reproduce a record request 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, 5 10(d); see also 950 C.M.R. 32.07(2). Additionally, the Id. reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. 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, 5 10(d); see also 950 C.M.R. 32.06(4). The School indicated that the majority of the emails that were identified in its search for records referring to the identified student constituted student records, which are exempt fiom disclosure under both state and federal law, M. G. L. c. 71, $5 34D and 34E; 603 C.M.R. 23.00 (protecting student records from disclosure to third parties); 20 U.S.C. $12328; 34 CFR Part 99 (Family Educational Rights and Privacy Act and Regulations (FERPA) protecting the privacy of student information). As such, the School indicated that it is required by law to "segregate emails that comprise the identified student's records from emails that qualify as public records." The School indicated that it further redacted records under 20 USC Sec. 1232g (a)(4)(A); 34 CFR 99.3 because they contained personally indefinable information (PII) and the attorney-client privilege. The School indicated that it spent an estimated 20 hours segregating the public records from the approximately 5000 pages of the records that resulted from its search. However, the

Superintendent Pamela Beaudoin Page 3 February 23,20 18 School did not identify the specific types of records in its possession necessitating segregation and redaction. Also, based on the School's response, I find that the School has not explained with specificity why the estimated amount of time was required to produce responsive records. Specifically, it is unclear why the school requires 20 hours to segregate records for responsiveness. The School also indicated that it would require another hour to redact the 105 pages of student records under 20 USC Sec. 12328 (a)(4)(A); 34 CFR 99.3 and the attorney-client privilege. It is uncertain how much time is being assessed to redact each email record. It is additionally uncertain how the records contain privileged information therefore requiring the redaction. The School must clarify this matter. Employee time The Regulations provide that a municipality with a population of 20,000 or fewer may assess a fee for the first two hours of work performed. See 950 C.M.R. 37.07(2)(m)(2). Population data shall be determined by the decennial U.S. Census and it is the burden of the municipal RAO to provide such information in its response. 950 C.M.R. 37.07(2)(m)(2)(i-ii). The School's fee estimate indicates that "MERSD is a municipality under the Public Records Law and both Manchester and Essex together have a population of fewer than 20,000 people." Thus, I find the School may assess a fee for the first two hours of time spent for segregating, redacting, and reproducing a requested record. For the reasons discussed above, I find the School must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, tj 1O (d). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you before the issuance of this determination. Order Accordingly, the School is hereby ordered to provide Ms. Hindes with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. 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('i3,sec.state.ma.u~. Sincerely, Rebecca S. Murray v Supervisor of Records cc: Julie Hindes