Matthew Rocheleau v. Sudbury, Town of - Public Schools (SPR 20200427)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 10, 2020 SPR20/0427 Donald R. Sawyer Director of Business & Finance/Records Access Officer Town of Sudbury Public Schools 40 Fairbank Road Sudbury, MA O1 77 6 Dear Mr. Sawyer: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Town of Sudbury 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 copy, in electronic format such as PDF or Word, of: "[a]ny/all settlement agreement regarding the provision of special education services(s) and/or educational placement(s) for students with disabilities entered into by your [School] with parent(s)/guardian(s) from Jan. 1, 2010 through present." On February 26, 2020, the School provided Mr. Rocheleau with a response which included a fee estimate of $630.00 to provide him with the responsive records. As a result of the fee estimate, Mr. Rocheleau petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Tlte 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 pmiions 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

Donald R. Sawyer SPR20/0427 Page 2 March 10, 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, § 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 paii 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, § 10( 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 26, 2020 response/fee estimate On February 26th, the School provided Mr. Rocheleau with a fee estimate totaling $630.00 for segregation, compilation, review, redaction, and reproduction of the records. The response indicated that the Town has a population of less than 20,000 people, therefore, the School is not required to waive the cost of the first two (2) hours of work. See 950 C.M.R. 32.07(m). The School asserts that it has undertaken an extensive search for the settlement agreements based on an hourly rate of $25.00 per hour; however, it is unclear the amount of time the School has assessed to conduct the search. Your estimate also indicates that the School is assessing fees for "segregation, compilation, review, redaction, and reproduction of the records." The School's estimate states, "[t]he segregation, compilation, review, redaction and reproduction of the records responsive to [Mr. Rocheleau's] request can only be performed by an employee in the Central Office who is

Donald R. Sawyer SPR20/0427 Page 3 March 10, 2020 qualified to review confidential.information such as that which may be contained in the responsive records ... " You explained that the lowest paid employee in the Central Office is the Superintendent's Administrative Assistant with an hourly rate of $34.21 per hour, but that the School will charge $25.00 per hour. G. L. c. 66, § lO(d)(iii). You estimate," ... it would take the [Superintendent's Administrative Assistant] an approximate average of fifteen (15) minutes per page, with approximately one hundred (100) pages, for a total of approximately twenty-five (25) hours, to review the responsive records located in the search, analyze the same for responsiveness to [Mr. Rocheleau's] request, analyze the same for information that could identify a particular student or students of the [School], redact any exempt information, and convert the redacted document to an electronic record for transmission to [Mr. Rocheleau]." The School estimated the total amount for these tasks of $625.00 (25 hours@ $25.00 per hour), and an additional cost of $5.00 for 100 pages copied at $.05 per page. You explained that the School does not have the capability to electronically redact the settlement agreements, so the School must copy, redact the copy then scan the redacted records to electronically transmit them to Mr. Rocheleau. Therefore, the School's total estimate is $630.00. The School did not detail how many hours of the 25 hours are allocated to each task. 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. 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). In your February response, you indicate, "the School is prohibited by law from disclosing or making public, records and information which identify a student, or provides information about a student who is personally identifiable, pursuant to M.G.L. 71, § 34D, 603 C.M.R. 23.00 et seq., and 20 U.S.C. § 1232g, as well as M.G.L. c. 4, § 7(26)(a) and M.G.L. c. 4, § 7(26)(c), which exempt information which would otherwise constitute an unwarranted invasion of personal privacy." While the School is allowed to charge a segregation and redaction fee for information that is required to be withheld under state and federal statutes that operate through Exemption (a), the School indicates that it will take 15 minutes per page to review and redact students' information and any information that may identify the student from the approximate 100 pages ofrecords. In his February 27111 petition, Mr. Rocheleau states," ... [f]or one, the time estimate is unreasonably high and in violation of 950 C.M.R. 32.07(b ). The total estimate for 25 hours is based upon an estimate that it will take 15 minutes per page to review and redact the material, which is very far out of line when compared to what public agencies normally charge. Usually agencies estimate about 1 minute per page for [segregation] and redaction purposes." I find that the School has not demonstrated why it is necessary to review each page for 15 minutes. Finally, Mr. Rocheleau questions whether the School may have already redacted versions

Donald R. Sawyer SPR20/0427 Page 4 March 10, 2020 of the settlement agreements from a previous request by another individual on October 16, 2016. It is unclear whether the School has copies of the settlement agreements from the October 16, 2016 request already redacted. Mr. Rocheleau suggests that if the School already has the settlement agreements in redacted format from the October 16, 2016 request, then the cost may be significantly reduced with his current request. I find that the School must clarify this issue. 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, ~r~ Supervisor of Records cc: Matthew Rocheleau