Matthew Rocheleau v. Hopkinton, Town of - Public Schools (SPR 20200425)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supe111isor of Records March 11, 2020 SPR20/0425 Jennifer Parson Hopkinton Public Schools Town of Hopkinton 89 Hayden Rowe Street Hopkinton, MA 01748 Dear Ms. Parson: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Town of Hopkinton 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 "[a]ny/all settlement agreements regarding the provision of special education service(s) and/or educational placement(s) for students with disabilities entered into by your school district with parent( s )/g uardian( s) from Jan. 1, 2010 through present." On February 20, 2020, the School provided Mr. Rocheleau with a response which included a fee estimate. Unsatisfied with the School's response, Mr. Rocheleaµ petitioned this office and SPR20/0427 was opened. The 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 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). 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

Jennifer Parson SPR20/0425 Page 2 March 11, 2020 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 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 inay 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, § lO(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, § 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 February 201 Fee Estimate " In its February 20th response, the School indicates "it would take an average of one-half hour per agreement to locate, redact and reproduce that record for you, for a total of 16 Yz hours of District employee time for the 33 settlement agreements. At $25.00 per hour, we estimate that the cost of providing the requested documents to you, after redaction, would be $412.50." The School claims Exemption (a) for redaction, specifically "M.G.L. c. 71, §§ 34D and 34E and 603 CMR 23.07 (4) which exempt student record information from disclosure to third pa1iies and the federal education law ... " The School also claims redaction for personal privacy under Exemption (c). The School explains they must review each agreement for "information as to the student's name and address, the names and addresses of the parents, references to the particular needs of the students ... references to the particular placement ... and any other information analyzed together ... would identify the particular student as the subject of the particular settlement agreement." The School further explains "the lowest paid employee of the District who could perform the search anc:l make judgments as to which information is public and which information is exempt ... would be the Administrative Secretary to Student Services, whose hourly rate is $27 .15 per hour; as such any time spent by that employee would be billed to you at the maximum rate of

Jennifer Parson SPR20/0425 Page 3 March 11, 2020 $25.00 per hour." The School's fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The School has not provided sufficient explanation to explain why 16 Yz hours is necessary "to locate, redact and reproduce" in order to comply with the records request. Specifically, the School must clarify what tasks are necessary to provide the records, as well as indicate the amount of time it will take to perform each task. Finally, the School is advised that a municipality is not permitted to charge for time spent segregating records unless segregation is required by law or approved by the Supervisor of Records under a petition. See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Whereas the School has not received approval under a petition to charge for segregation, it is unclear how the Office is permitted to charge for segregation under Exemptions ( c ). The School must clarify this matter. 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