Matthew Rocheleau v. Lexington, Town of - Public Schools (SPR 20200351)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen1/sor of Records March 3, 2020 SPR20/0351 Monica Visco Director of Human Resources Town of Lexington Public Schools 146 Maple Street Lexington, MA 02420 Dear Ms. Visco: I have received the petition of Matthew Rocheleau of The Boston Globe appealing the response of the Town of Lexington 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 February 14, 2020, Mr. Rocheleau requested electronic copies of: "[a]ny/all settlement agreements regarding the provision of special education service(s) and/or educational placement(s) of students with disabilities entered into by your school district with parent(s)/guardian(s) from Jan. 1, 2010 through present." On February 21, 2020, the School provided a fee estimate totaling $510.00. The same day, Mr. Rocheleau contacted you asking for a detailed breakdown of the costs, and an explanation regarding the exemptions claimed by the School to account for segregation and redaction. As a result of the estimate, Mr. Rocheleau petitioned the Supervisor of Records (Supervisor), and this appeal was opened. TJ,e Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(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 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

Monica Visco SPR20/0351 Page 2 March 3, 2020 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). Fees -Municipalities If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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, § lO(d). The fees must reflect the actual cost of complying with a paiiicular 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, § IO(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 how if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § IO(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 fee estimate In its February 21st fee estimate, sent via email to Mr. Rocheleau at 10:33 am, the School indicates, "[w]e have estimated that the time it will take for preparation of these documents, gathering, redacting is 20 hours. We will charge you for 18 of those hours at $25 per hour totaling $450.00 [plus] $60 for photocopying approximately 300 pages." After Mr. Rocheleau asked for fmiher detail, such as the time necessary for searching versus segregating and redacting the records, how the $60 cost is calculated for copies, and what exemptions the School is claiming that requires redaction of material restricted by law or approved through the Supervisor, the School responded with further information. In its email at 10:53 am on February 2I5t, the School indicates, " ... it will require at least 20 hours of the lowest paid person in the department. We are charging you for 18 of those hours. The number of documents is estimated at 300. The names of parents and students will be redacted from the documents."

Monica Visco SPR20/0351 Page 3 March 3, 2020 The School indicates that it is assessing a fee of $25.00 for 20 hours, less two hours of time, for a total of 18 hours. However, the School provided no explanation to justify how the 20 hours are necessary in order to comply with the record request. The School did not detail how many hours are allocated to each task it is undertaking to provide Mr. Rocheleau with the records. I find that the School must provide more detail regarding the tasks and the amount of time for each of the tasks. Specifically, it is unclear how many hours were allocated to searching, segregating, redacting and scanning the records for providing the records electronically to Mr. Rocheleau. Additionally, the School's estimate states that it is assessing a rate of $25.00 per hour; however, the School did not detail what the normal hourly rate is for the lowest paid employee in the depaiiment. The School is reminded that $25 per hour is the maximum hourly rate allowed by the Public Records Law, without seeking approval from the Supervisor through a petition. G. L. c. 66, § 10(d )(iii); see also G. L. c. 66, § 10( d)(iv). I find that the School must clarify this issue. Fee for segregating and redacting exempt material Based on the School's responses, it appears it is assessing a fee for segregating and redacting the students' and parents' names from the records. However, it is unce1iain how redaction is required by law in this matter. Specifically, it is not clear which statutes, if any, require the School to redact the records. Please note that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). To the best of my knowledge, I am not aware that the School has submitted a petition under G. L. c. 66, § lO(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). As such, I find the School must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Further, the School indicates that it will take 4 minutes per page to review (segregate) and redact students' and parents' names from the approximate 3 00 pages of records. Mr. Rocheleau questions whether 4 minutes of time per page is excessive. He states in his February 21st email at 11 ;03 am, "[t]ypically redaction requires one minute per page. So, I'd appreciate a clearer explanation of how the estimate of 20 hours was calculated." I find that the School has not met its burden of specificity in providing its February 21st estimate. Records in electronic format In Mr. Rocheleau's petition for appeal, he states, "[t]he [School] also appears to be quoting a higher-than-allowed fee for photocopying, in violation of 950 CMR 32.07(2)(e), which

Monica Visco SPR20/0351 Page 4 March 3, 2020 sets the limit at 5 cents per page. It is also unclear whether photocopying is even necessary in this case or if the [School] quoted fees may be in violation of 950 CMR 32.07(2)(f). This request specifically requested these records in electronic format." Under the Public Records Access Regulations, a records access officer (RAO) must to the extent feasible, provide public records to a requester in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor's preferred format. In the absence of a preferred format, the records shall be provided in a searchable machine-readable form. 950 C.M.R. 32.04(5)(d). It is unclear whether the responsive records are available in electronic format. The School must clarify this issue. For the reasons discussed above, I find the School must revise its fee estimate or provide further explanation of how the fee assessed in its February 21st estimate is consistent with G. L. c. 66, § 10( d). Conclusion Accordingly, the School is ordered to provide Mr. Rocheleau with a response to the request, 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: Matthew Rocheleau