Karin Sutter v. Natick, Town of (SPR 20190915)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 21, 2019 SPR19/0915 Timothy Luff Natick Public Schools Office of the Superintendent 13 East Central Street Natick, MA 01760 Dear Mr. Luff: I have received the petition of Karin Sutter appealing the response of the Natick Public Schools (School) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on March 27, 2019, Karin Sutter requested "to inspect all emails sent by Peter Sanchioni, William Hurley, Anna Nolin and Tim Luff between 2/23/14 and 3/25/14." On April 2, 2019 the School provided an initial response to Ms. Sutter, including a request for more specificity and the indication of a fee estimate. The School submitted a petition for a waiver of statutory limits to asses a fee to this office on April 18, 2019, in which it was denied on the basis that it was submitted more than 10 business day after receipt of the request. See SPR19/0795 Determination of the Supervisor of Records (April 25, 2019). In response to SPR19/0795, the School provided Ms. Sutter with a revised fee estimate on May 3, 2019. Unsatisfied with the School's revised fee estimate, Ms. Sutter petitioned this office and SPRl 9/0915 was opened as a result. Fee - Municipalities A municipality may assess a reasonable fee for the production ofa public record except those records that are freely available for public mspect10n. G. L. c. 66, § IO(d). Ifie 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 (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, § 10(d )(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate 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

Timothy Luff SPR19/0915 Page 2 May 21; 2019 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). 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). The Town's May 3rd Response In the School's May 3rd response to Ms. Sutter, the School states "[g]iven the Law, specifically FERPA and Massachusetts Student Records Law, require that we segregate and redact personally identifiable information of students, it is our position that we do not require an approved petition." The School provided the following fee estimate: Segregation time: 20 Redaction Time: 4 hours Total Time: 24 hours Total time charged: 22 Hours Cost as requested to be approved by the Supervisor of Records: $25 per hour Total Cost: $550 included a fee estimate in its response. The School explains "Natick Public Schools has counted more than 2000 records that may be responsive to this request. To segregate and redact confidential information I estimate a minimum of 24 hours to segregate and redact highly confidential information that may exist therein." The School further explains "[b]ased upon previous record requests the Natick Public Schools averages more than 10 hours per 1000 documents to search and segregate records that may contain personal and/or confidential information regarding students, members of the public, and/or personnel. Redaction typically average another 2 hours per 1000 documents, possibly more, dependent upon the confidential material found within each document." The School also explains "[t]he records requested may contain personal and confidential information regarding students, members of the public, and/or personnel. In order to complete this search and to identify what, if any, records fall within privacy exemptions, this search can only be completed by a high level town employee." Ms. Sutter is appealing the School's May 3rd revised fee estimate on the basis that the School "has not cited any- exemptions, has not identified a single specific law or statute requiring redaction, nor has [the School] provided any specificity to justify the estimated hours for segregation and redaction."

Timothy Luff SPR19/0915 Page 3 May 21, 2019 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Based on the School's response, it is unclear why the requested records may contain information that needs to be redacted. The School must also explain why 20 hours is necessary for segregation. It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold or redact requested record. G. L. c. 66, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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, §lO(d). This office encourages Ms. Sutter and the School to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 1O (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

Timothy Luff SPR19/0915 Page 4 May 21, 2019 sought more efficiently and affordably). Any updated fee estimate by the School must be in compliance with this determination, the Public Records Law, and its Access Regulations. Order Accordingly, the School is ordered to provide a response made in accordance with the Public Records Law, its Access Regulations and this order within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ms. Sutter may appeal the substantive nature of the School's response within ninety days. See 950 C.M.R. 32.08(1 ). Sincerely, Rebecca S. Murray Supervisor of Records cc: Karin Sutter