Maura Hughes v. Manchester Essex Regional School District (SPR 20180709)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 22, 2018 SPRlS/709 Pam Beaudoin Superintendent Manchester Essex Regional School District 36 Lincoln Street Manchester-by-the-Sea, MA O1 944 Dear Ms. Beaudoin: I have received the petition of Maura Hughes appealing the response of the Manchester Essex Regional School District (School) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Hughes requested "[a]ny and all student records from the Manchester Memorial Elementary School including but not limited to all transcripts and temporary records, 504s, progress reports, assessments, evaluations, handwritten notations, meeting minutes, records of service delivery, monitoring documents, observation notes and reports, disciplinary records, health records, written communication of any form between Manchester Essex Public School staff and all outside persons/school/agencies, all emails in all servers used by the Manchester Essex Public Schools ...." Ms.Hughes notes that this request is for records referencing or referring to her family. Previous appeal This request was the subject of a previous appeal. See SPR18/344 Determination of the Supervisor of Records (March 30, 2018). In my March 30th determination I ordered the School to provide Ms. Hughes with a revised fee estimate in a manner consistent with the order, the Public Records Law and its Regulations. The School responded on April 17, 2018 in a letter from Attorney Amy Rogers. Ms. Hughes appealed and SPRl 8/709 was opened as a result. Current appeal In the April 1 J1h response to Ms. Hughes, Attorney Rogers notes "you have been provided with nearly 1000 pages of your child's school records free of charge. The $313.90 to which you refer was a charge for public records not student records. Please note that you already paid the charge and received the public records associated with that charge." As noted in this response, "student records" are defined as follows: 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

Pam Beaudoin SPR18/709 Page 2 May 22, 2018 The student record shall consist of the transcript and the temporary record, including all information recording and computer tapes, microfilm, microfiche, or any other materials regardless of physical form or characteristics concerning a student that is organized on the basis of the student's name or in a way that such student may be individually identified, and that is kept by the public schools of the Commonwealth. The term as used in 603 CMR 23 .00 shall mean all such information and materials regardless of where they are located, except for the information and materials specifically exempted by 603 CMR 23.04. 603 C.M.R 23.02 (emphasis in original). Fee estimates for public records 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. Id. A maximum fee of five cents ($.05) per page may be assessed for black and white copies for both single and double..:sided copies of a public record. G. L. c. 66, § 10(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, § 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, § lO(d)(iii); 950 C.M.R. 32.06(4). The School explained the basis of the fee of $313. 09 for access to the public records in a January 8, 2018 letter. In this January 8th response, Attorney Rogers explains that the School identified approximately 2,000 potentially responsive emails. Attorney Rogers also notes "[s]egregating the records that constitute 'public records' within the meaning of the Massachusetts Public Records law was a time consuming process. Ultimately, the district has identified 258 pages of public records that satisfy your request." Attorney Rogers also noted "[m]any of the public records then required redaction. FERPA prohibits the disclosure of personally identifiable information (PII) regarding students to third parties. 20 USC Sec. 1232g (a)(4)(A); 34 CFR 99.3." With respect to how the fee was calculated, the School indicates "[t]he segregation of student record from public records, and redacting exempt information was a time consuming task. The district estimates that it spent ten

Pam Beaudoin SPR18/709 Page 3 May 22, 2018 hours segregating the public records from the approximately 2000 pages of records identified in the district's search for records. Redacting the 278 pages identified as student records took approximately two (2) hours. Additionally, the district is charging five cents per page for the 278 pages." Attorney Rogers explains that "[i]n summary, you have been provided with your child's entire student record free of charge" and that the $313. 90 fee "was a charge for public records that you received on January 12, 2018." In light of its explanation regarding the applicability of the Family Educational Rights and Privacy Act (FERP A) and similar laws regarding student privacy, I find the School has demonstrated that segregation or redaction was required by law. See G. L. c. 66, § 10( d)(iii); G.L. c. 71, §§ 34D and 34E; 603 C.M.R. 23.00. However, the School must clarify how many pages it produced as public records. The School must also explain how it distinguished student records from public records and confirm whether additional public records exist. This office encourages the School and Ms. Hughes to communicate further to clarify the issues that remain related to production of records. G. L. c. 66, § 1O (b )(vii). In Ms. Hughes's appeal petition, she suggests that our office obtain the responsive public records from the School and provide them to her in order to help reduce confusion about the difference between records produced as student records and those produced as public records. This office will coordinate with the School to determine the feasibility of this approach. Conclusion Accordingly, the School is ordered to provide Ms. Hughes with a response 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@sec.state.ma.us. Sincerely, ~y~ Supervisor of Records cc: Maura Hughes Amy M. Rogers, Esq.