Gerard F. Mackin, Jr. v. Weymouth, Town of - Public Schools (SPR 20181698)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 28, 2018 SPRlS/1698 Dr. Jennifer Curtis-Whipple Superintendent Weymouth Public Schools 111 Middle St. Weymouth, MA 02189 Dear Dr. Curtis-Whipple: I have received the petition of Gerard F. Mackin appealing the response of the Weymouth 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, on October 15, 2018 Mr. Mackin requested the following records: I respectfully request that as the records access officer of the town of Weymouth you provide to me the following documents pursuant to the freedom of information act; (1) Every document sent into or out of the Weymouth School Dept. email account 'kevin.mackin@weymouthps.org' since August 1, 2018 through the date on which a final response is made to this request. I am making this request as an individual for private not personal reasons and so I request that fees be waived. Additionally, fees should be waived since I intend to provide any relevant documents to the Human Resources director in connection with an ongoing investigation. The School responded on October 26, 2018 by providing a fee estimate for the production of records. 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. 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, § 10(d )(i). 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

Dr. Curtis-Whipple SPR18/1698 Page 2 November 28, 2018 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, § lO(d)(iii); 950 C.M.R. 32.06(4). Appeal In its October 261 h response the School indicates "[t]hese documents are located within the District's e-mail archive system. It will require time to search for these documents and to segregate the documents. It is estimated that there are approximately 5,084 emails in total to review. It will take 1 hour to search for the emails requested." With respect to the applicability of exemptions within the responsive records, the School asserts "[i]n accordance with M.G.L. 4, Section 7, cl 26(a) and (c), after each document is identified and segregated, each email/document will have to be reviewed individually to ensure the contents do not include information protected by state or Federal privacy laws, including but not limited to the following; Family Educational PrivacyAct (FERPA), M.G.L. Chapter 71, section 34E and M.G.L. Chapter 149, section 52C." The School estimates it may take up to 50 hours to "gather and review the information" at an hourly rate of $25.00 per hour. Segregation is defined as, "the time used to review records to determine what portions are subject to redaction or withholding under M.G.L. c. 4, § 7 or other legally applicable privileges." Redaction is defined as, "to delete, or otherwise expurgate that part of a public record this is exempt from disclosure under M.G. L. c. 4, § 7 or other legally applicable privileges from non exempt material." See 950 C.M.R. 32.02 (definitions). It is unclear how much of the estimated amount of time is meant for searching for the records versus segregation and/or redaction of them. The School must clarify these tasks. Furthermore, the School assessed segregation and redaction for statutes that operate through Exemption (a) of the Public Records Law; however, the School did not provide sufficient information for this office to determine that segregation and redaction under FERPA , Student Records and the statute for personnel records held by an employer are applicable to the requested records. I find that the School must provide further details on why the School believes that information within the content of the records is restricted information under the state and federal laws cited.

Dr. Curtis-Whipple SPR18/1698 Page 3 November 28, 2018 Where applicable, this office encourages Mr. Mackin and the School to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § lO(b )(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Order Accordingly, the School is ordered to provide Mr. Mackin with a response regarding its fees for segregation and redaction, in a manner consistent with this order, the Public Records Law and its Regulations within 10 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, Rebecca S. Murray Supervisor of Records cc: Gerard F. Mackin