Steven Ballard v. Acton-Boxborough Regional School District (SPR 20191105)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 17, 2019 SPR19/1105 Beth Petr Executive Assistant to the Superintendent and School Committee Acton-Boxborough Regional School District 15 Charter Road Acton, MA O1 720 Dear Ms. Petr: I have received the petition of Attorney Steven Ballard appealing the fee estimate of the Acton-Boxborough Regional School District (District) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Attorney Ballrd submitted two public records requests on January 16, 2019 having to do with the ABRSD program. The District provided a response to both requests with separate fee estimates on January 31, 2019. Attorney Ballard appealed both fee estimates. This request was the subject of previous determinations. See SPRl 9/0879 Determination of the Supervisor of Records (May 16, 2019); SPR19/0880 Determination of the Supervisor of Records (May 16, 2019). In both determinations I ordered the District to provide Attorney Ballard a written response made in accordance with the Public Records Law, its Regulations and the order. The District responded on May 31, 2019 with supplemental information for their initial fee estimate. Unsatisified with this response, Attorney Ballard appealed both responses and SPRl 9/1105 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, § lO(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

Beth Petr SPR19/1105 Page 2 June 17, 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, § 10(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). Appeal In the May 16th determinations I found the District needed to explain why the stated amount of time is needed to produce the records. Specifically, the District was to describe how much time is needed to search for the records versus how much time will be needed to segregate and/or redact. I also determined the District must explain whether the 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). In addition, I asked the District to clarify whether the hourly rate being charged is that of the lowest-paid employee capable of preforming the task. The Department's May 31st response provided "assistant and secretaties, who are qualified to review the documentation and indetify redactable material ... are hourly employees and their per-hour average is a rate higher than $25 per hour." The Department further provides an estimate of 1.5 minutes per page for review and redaction "pursuant to the Family Educational Rights and Privacy Act (FERP A), personnel information and subject to privacy exmeption MGL c. 4 § 7 (26)( c ), attorney client privilege, or information that needs to be redacted pursuant to MGL c. § 7(26)(b)." In camera review I find that an in camera review of a representative sample of responsive records would facilitate a determination as to scope of the review required, therefore shedding light on the reasonableness of the fee estimate. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue a determination. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding.

Beth Petr SPR19/1105 Page 3 June 17, 2019 Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Conclusion The District must provide this office an unredacted copy of a representative sample of the responsive records for in camera inspection without delay. The District may provide this office with an explanation of its position regarding the applicability of an exemption( s) to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Steven Ballard