Andrew McIsaac v. Weymouth, Town of - Public Schools (SPR 20200585)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 8, 2020 SPR20/0585 Eileen Pitts Secretary to the Superintendent Weymouth Public Schools 111 Middle Street Weymouth, MA 02189 Dear Ms. Pitts: I have received the petition of Andrew McIsaac appealing the response of the Weymouth Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 18, 2020, Mr. McIsaac requested “[a]ll Physician’s Statements for Temporary Home or Hospital Education (Form 28R/3) received by and contracts for the provision of hospital-based educational services created by the Weymouth Public Schools between March 17, 2019 to March 17, 2020. In a March 25, 2020 response, the School provided a response with a fee estimate. Unsatisfied with the School’s response, Mr. McIsaac petitioned this office and SPR20/0585 was opened as a result. 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, § 10A(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, § 10(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

Eileen Pitts SPR20/0585 Page 2 April 8, 2020 Fees - Municipalities If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); -se-e -a-ls-o 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 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, § 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, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The School’s March 25th fee estimate In its March 25th fee estimate, the School indicates “there are at least 30 in total to review with approximately 2-3 pages each for a total of approximately 60 pages to be reviewed which will take approximately 3 hours for a total of 6 hours (at 25.00 per hour)…we will not charge for the first two hours of searching for, compiling, segregating, redacting and reproducing, the requested records.” The School states “[i]t will take 3 hours to search for the documents requested.” The School explains “[t]hese documents are located within the school archive system.” The School indicates “[i]n accordance with M.G.L. 4, Section 7, cl 26(a) and (c), after each document is identified and segregated, we must review the public records to exclude any private, personal information, for example. This review may include identifying and then redacting personal information of the students of the Weymouth School District who are mentioned or referenced in the documents requested.” The School cites the federal Family Educational Rights and Privacy Act (FERPA) in redacting the records “to protect the privacy of students, families, and employees.”

Eileen Pitts SPR20/0585 Page 3 April 8, 2020 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 6 hours is necessary for “searching for, compiling, segregating, redacting and reproducing, the requested records” in order to comply with the 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, § 10(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. McIsaac with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Andrew McIsaac