Paul Sullivan v. Framingham, City of - Public Schools Department (SPR 20190632)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 8, 2019 SPR19/0632 Amy Kane Framingham Public Schools Department 73 Mt. Wayte A venue Suite #5 Framingham, MA 01702 Dear Ms. Kane: I have received the petition of Mr. Paul Sullivan appealing the response of the Framingham Department of Public Schools (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Sullivan requested "a copy of all emails sent from principal Carolyn Branch, Athletic director Paul Spear and Assistant Principal Mark Albright to the FHSF president or CO-president Including all emails with the subject line Framingham High school Foundation or FHSF in the subject line" or "which include the term words Grant Request Form, FHS Fundraising Form all for the time period previously requested." This request was the subject of a previous appeal. See SPRl 8/2003 Determination of the Supervisor of Records (December 21, 2018). On December 21, 2018 the Department responded to Mr. Sullivan's request with a fee estimate. Unsatisfied with this response, Mr. Sullivan petitioned this office, and this appeal, SPRl 9/0632 was opened as a result. 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). 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. 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

Amy Kane SPR19/0632 Page 2 April 8, 2019 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 The Department estimates that it will take approximately 6 hours for search and segregation of potentially responsive records, and 2 hours to "review and when/if appropriate, redact exempt information." The Department assessed an hourly rate of $25 per hour and explained that the hourly rate of the lowest paid employee capable of performing the task exceeds the maximum allowable rate under G. L. c. 66, § lO(d)(iii). G. L. c. 66, § JO(e) The Department indicated that records requested "may contain student names and/o r other personally identifiable information which is except from disclosure under the Public Records Law, M.G.L. c. 4, §7(26) (a) and (c)." They assert that "personally identifiable information is exempt from disclosure by federal and state student and family privacy laws. See the federal Family Education Rights and Privacy Act (FERP A); the federal Individuals with Disabilities Education Act (IDEA), and the state student records statutes and regulations concerning confidentiality of student record information. See 20 U.S.C. § 1232g, 20 U.S.C § 1400; see also G.L. c. 71, §§34D, 60, G. L. c. 71B, § 1; and 603 CMR 23.00 et seq. See also Champa v. Town of Weston, 473 Mass. 86 (2015)." , In his appeal petition Mr. Sullivan questioned the Department's ability to assess the fee under G. L. c. 66, § lO(e). Specifically, he asserted that" ... the [C]ity has not provided a proper response within the 10-day requirement." G. L. c. 66, § lO(e) provides that "[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b )." I find the Department must clarify whether it complied with G. L. c. 66, § 10(e ). Specifically, it must demonstrate whether it provided a response to Mr. Sullivan's request under G. L. c. 66, § lO(b) within 10 business days ofreceipt of the request. See G. L. c. 66, § lO(b)(i) (ix) (outlining the requirements of a records custodian's written response to a requestor). Reasonableness off ee estimate; segregation and redaction time In the event that the Department can demonstrate that it complied with G. L. c. 66, § lO(e), it is necessary to analyze the reasonableness of the fee estimate. The Department's December 21st response indicates that the search and segregation ofrecords responsive to Mr.

Amy Kane SPR19/0632 Page 3 April 8, 2019 Sullivan's request will take 6 hours. I find the Department must describe how much time will be needed to search for the records versus how much time will be needed to segregate and/or redact. In light of its December 21st response, I find that the Department has sufficiently explained why redactions are required by law. See G. L. c. 66, § lO(d)(iii) (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)); 950 C.M.R. 32.06(4)(g). Conclusion Accordingly, the Department is ordered to provide Mr. Sullivan a response in a manner consistent with the Public Records Law, its Regulations, and this order 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: Paul Sullivan