Ronald Alexander v. Wellesley, Town of - Public Schools (SPR 20191459)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 6, 2019 SPR19/1459 Cynthia D. Mahr Assistant Superintendent, Finance and Operations Town of Wellesley-Public Schools 40 Kingsbury Street Wellesley, MA 02481 Dear Ms. Mahr: I have received the petition of Ron Alexander appealing the response of the Wellesley 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 May 22, 2019 and May 23, 2019, Mr. Alexander requested all emails sent by certain Wellesley School Committee members from January 1, 2019 to the present. This request was subsequently narrowed on May 29, 2019, for emails sent by the individuals "from May 1, 2019 to present." Previous fee petition and appeal The requested records were the subject of a previous fee and time petition and subsequent appeal. See SPRl 9/1122 Determination of the Supervisor of Records (June 11, 2019) and SPR19/1185 Determination of the Supervisor of Records (June 27, 2019). In my June 2i11 determination, I found that the School had met its burden in providing a reasonable fee estimate for production of the records under the Public Records Law and its Regulations. Following the June 2i11 determination, Mr. Alexander fmiher narrowed his request on June 30, 2019, " ... to exclude any emails that were Sent or Cc'd to Town Counsel, thereby excluding any responsive records that might contain information subject to the attorney-client privilege exemption and eliminating the need to produce a privilege log." After the modification, the School submitted a petition to the Supervisor of Records, seeking permission to charge $39.18 per hour in responding to the request. See SPR19/1350 Determination of the Supervisor of Records (July 12, 2019). Please refer to the determination in SPR19/1350 for analysis of this issue. Following my finding that the School may assess a fee for the time spent to segregate and redact these requested records at $3 9 .18 per hour, the School One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Superintendent Mahr SPR19/1459 Page 2 August 6, 2019 provided a fee estimate dated July 15, 2019. Unsatisfied with the School's response, Mr. Alexander petitioned this office and this appeal, SPR19/1459, was opened as a result. Fee estimate - municipalities 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 (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 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). The School's July 15th fee estimate In its July 15, 2019 fee estimate, the School indicates that portions of the records need to be segregated and redacted pursuant to Exemption (a) because" ... some of the emails may contain student information protected from release under the Family Education Rights Privacy Act ('FERPA'), 20 U.S.C. § 1232 and 34 C.F.R. Part 99." The School explains that FERPA and its implementing regulations protect the privacy of students' education records by limiting disclosures of personally identifiable Information ('PII') contained in such records. 'Education Records' means those records that are: (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency orinstitution. 34 C.F.R. § 99.3." The School lists examples of PII and states that because Mr. Alexander has" ... requested all emails by School Committee members, there is a possibility that these emails may contain PII. [Therefore], [t]he School ... must ... review each record to determine if they can be released or must instead be withheld or redacted pursuant to FERP A." The School states that aside from Exemption (a), portions of the records may fall under "Exemption (c) - Personnel Information: [the identified individuals] may communicate via email regarding the performance of an employee with the [School]. Exemption ( c) would likely protect from release any information that would be helping in making an employment decision." The School also claims that portions of the records may fall under the second clause of Exemption

Superintendent Mahr SPR19/1459 Page 3 August 6, 2019 (c), because "[a]s elected officials, the public may seek to communicate with their elected officials about highly private issues that are affecting their students. It is not uncommon for Committee members to receive information about a pmiicular student that, if disclosed, would constitute an unwarranted invasion of privacy." The School further posits that Exemption (d) may apply, because "it is possible that the potentially responsive records could contain information pe1iaining to on-going deliberations that if released could taint the deliberative process." Also, the School states that the individuals" ... may communicate with School Department.staff, the Police Depmiment, or the Fire Depmiment about security measure or emergency response protocols that, if released, could jeopardize public safety, including safety of school children. This information may be protected under Exemption (n)." The School reiterates that "[t]he essential fact here is not that these exemptions apply, but rather, that School Committee members often communicate about highly sensitive matters via email meaning that each of these emails must be reviewed to determine whether FERP A - which, by law would require a redacting or withholding the record - or another exemption to the Public Records Law permits withholding or redacting such emails. The [School] cannot merely provide [Mr. Alexander] with all of the potentially responsive records. The School ... must perform this necessary review." The School indicates that there are 510 emails and these emails would have to be reviewed to determine what portions can be provided. The School estimates that at ". . . 3 minutes per email, it will take a total of 25.5 hours to review and redact potentially responsive records .... Thus, 510 records x 3 minutes= 25.50 hours[;] 2[5].50 hours -2 hours= 23.50 hours[;] 23.50 hours x 39.18 = $908.97." In camera review I find that an in camera review of a representative sample of responsive records would facilitate a determination as to the scope of redactions required to be performed by the School, 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 an opinion on the public or exempt nature of the record. 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.

Superintendent Mahr SPR19/1459 Page4 August 6, 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. Order The School must provide this office an un-redacted copy of a representative sample of the responsive records for in camera inspection without delay. Sincerely, ~ r a ~ Supervisor of Records cc: Ron Alexander