Tim McGuire v. Somerset-Berkley Regional School District (SPR 20180895)

The Commonwealth of Massachusetts William Francis Calvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 2,20 18 SPR181895 Robin Vaccaro Somerset-Berkley Regional School District 580 Whetstone Hill Road Somerset, MA 02726 Dear Ms. Vaccaro: I have received the petition of Tim McGuire appealing the response of the Somerset- = Berkley Regional School District (District) to a request for public records. G. L. c. 66, § 10A; & 950 C.M.R. 32.08(1). Specifically, Mr. McGuire requested "[all1 documents including e- mails distributed by the faculty adviser to the Somerset-Berltley Regional H.S. chapter of the Gay Straight Alliance ("GSA") to students who are members of that group. This request is limited to materials distributed since January 2017," and "[all1 documents including e-mails exchanged between the Somerset-Berkley chapter of the GSA with any Planned Parenthood office Since January 201 7." On June 1,2018 , the District responded to his request, providing a fee estimate. G. L. c. 66, lO(b)(viii); see also 950 C.M.R. 32.07(2). 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, 10A(d); 950 C.M.R. 32.03(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). 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, 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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. One Ashburton Place, Room 17 19, Boston, Massachusetts 0210 8 * (6 17) 727-2832. Fax: (617 ) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Robin Vaccaro Page 2 July 2,20 18 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, 5 lO(d). The fees must 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, j € 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, 5 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. @. 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 1O (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, 5 lO(d)(iv). See G. L. c. 66, 5 lO(d)(iii); 950 CMR 32.06(4). The District's June lSrte sponse In the District's June lStr esponse, it indicates that in regards to Mr. McGuire's request for "[all1 documents including e-mails exchanged between the Somerset-Berkley chapter of the GSA with any Planned Parenthood office Since January 2017," the District does not possess responsive records. With respect to Mr. McGuire's request for "[all1 documents including e-mails distributed by the faculty adviser to the Somerset-Berkley Regional H.S. chapter of the Gay Straight Alliance ("GSA") to students who are members of that group," the District provides a fee estimate. The fee totals $456.25, which includes "18.25 hours to segregate and redact the responsive documents" at a rate of $25 an hour. The District explains that "the GSA advisor or a school administrator would be the lowest paid employees capable of performing the redaction task.. . Although the hourly rate of these individuals exceeds $25.00, [the District has] used that figure in developing a good faith estimate." The District indicates it "has already spent 2 hours searching for and compiling the potentially responsive documents." The District indicates that it "has identified approximately 1,000 pages of potentially responsive documents, including emails," and explains that "[tlhe requested records are or contain information which is exempt fiom public disclosure pursuant to federal and state student and family privacy laws. Communication and correspondence by and between students and the GSA faculty advisor constitute educational records under the Family Educational Rights and Privacy Act (FERPA) and student records under Massachusetts student records law and

Robin Vaccaro Page 3 July 2,20 18 regulations, and are therefore exempt from the definition of 'public records' pursuant to M.G.L. c. 4, 57(26) exemptions (a) and (c). Only if these records can be redacted to remove the protected personally identifiable information (PII), do the records or a portion of the records become subject to disclosure under the Massachusetts public records law." Based on the District's response, it is unclear what information is being redacted and how that information falls within the categories of PI1 requiring redaction. To the extent that the records contain FERPA protected information, the District is permitted to charge to segregate and redact such information. However, based on the District's responses it is unclear how the information constitutes PII. The District must provide an explanation as how the information being redacted from the responsive records constitutes PI1 and is required by law to be redacted from the records in order to be permitted to charge to those redactions. The District is advised that although Exemption (c) of the Public Records Law permits redaction of certain information that constitutes an invasion of privacy, it does not require it by law pursuant to Exemption (c). See G. L. c. 4, 5 7(26)(c). Consequently, the District is not permitted to charge to segregate or redact information under Exemption (c). See G. L. c. 66, 5 1O (d)(iii); 950 CMR 32.06(4). Mr. McGuire's petition for appeal; tlze District's June 26'" response In his petition for appeal, Mr. McGuire indicates that he is "willing to limit [his] request to those documents sent to more than a single addressee. Since the school would not have distributed PI1 to other students there is no legal requirement to now review that [sic] materials for PII. In other words, the teacher would not have disclosed personal information in a group e- mail." While this appeal was pending, the District provided another response on June 26,2018 . In its June 26th response, the District states that "[ilt appears that Mr. McGuire is appealing a records request on the basis of a very different request than the one he forwarded to the District. The District has not refused his request, but based on the request he made has provided an estimate of the time required to review the broad scope of records he has requested. His 'appeal' of the revised request and refusal to correspond with the District is disingenuous as he could easily have corresponded with counsel to amend the request instead of 'appealing' a request he never made." Based on the District's responses and Mr. McGuire's petition for appeal, it is unclear if Mr. McGuire is narrowing his request. If Mr. McGuire is adjusting his request, it is uncertain if this would reduce the amount of segregation and redaction time estimated by the District allowing a reduction in the fee cost. This office encourages the District and Mr. McGuire to further communicate to ascertain what information Mr. McGuire is now seeking and enable to District to complete the records request accordingly. I understand a Public Records Division staff attorney contacted your attorney's office about this matter.

Robin Vaccaro Page 4 July 2,201 8 Conclusion Accordingly, for the reasons discussed above, I find the District 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, 5 10(d). A copy of any such response must be provided to Mr. McGuire and to this office 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. McGuire may appeal the substantive nature of the District's response within ninety days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray V Supervisor of Records cc: Tim McGuire