Richard Howes v. Wellesley, Town of - Public Schools (SPR 20200816)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 27, 2020 SPR20/0816 Thomas J. Harrington, Esq. Miyares and Harrington LLP 40 Grove Street, Suite 190 Wellesley, MA 02482 Dear Attorney Harrington: I have received your petition on behalf of the Town of Wellesley School Department (School) seeking to charge in excess of the statutory fees in responding to a request made by Richard Howes. G. L. c. 66, § 10(c). As required by law, it is my understanding that the School furnished a copy of this petition to the requestor. Id. In a letter dated May 13, 2020, Mr. Howes requested records pertaining to the School’s issuance of a survey regarding Remote Learning. Specifically, Mr. Howes requested, “electronic copies of the results, as issued by the web based survey host-to include all written comments that may have been submitted.” Mr. Howes adds, “[p]lease also include any documents used by the School District to tabulate and/or evaluate the results- including any email communications regarding the survey.” Petitions to Assess Fees 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 (Supervisor) 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). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. 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

Thomas J. Harrington, Esq. SPR20/0816 Page 2 May 27, 2020 The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates 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 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, § 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In its May 19th petition, the School requests “authorization to charge a rate higher than $25 per hour, as further described below, for actual time spent by the School Department to segregate and redact the requested records. As described below, the School Department estimates that this review will take approximately 17.25 hours to complete… [t]here are 982 ‘written comment’ fields in the web-based survey host document with respect to parent submission of survey results. There are 16 emails responsive to his request.” The School explains, “[t]hese written comments (and the 16 emails) may contain a variety of information that both directly identifies the student and indirectly identifies the student, and must be redacted. For example, these written comments may contain information as

Thomas J. Harrington, Esq. SPR20/0816 Page 3 May 27, 2020 to the student/family economic situation, (i.e., food security status, access to technology, parental furlough or layoff status) and concerns regarding the effect of Remote Learning on the student’s IEP. The School Department must therefore review each written response to determine if they can be released or must instead be withheld or redacted pursuant to FERPA.” Further,“[i]t is likely that the School Department will need to redact portions of the requested documents because they are subject to one or more of the exemptions to the Public Records Law. Notably, portions of the requested records may be protected under Exemption (a), which applies to records that are specifically or by necessary implication exempted from disclosure by statute. In this case, some of the emails may contain student information protected from release under the Family Educational Rights & Privacy Act (“FERPA”), 20 U.S.C § 1232g and 34 C.F.R. Part 99. FERPA and its implementing regulations protect the privacy of students’ education records by limiting disclosures of Personally Identifiable Information (“PII”) contained in such records.” The School cites Exemption (c) claiming “the written comments or emails may contain information regarding the effect of Remote Learning on the student’s IEP or other medical concerns. The IEP status of a student directly implicates personal medical information that must be protected from public disclosure. Additionally, the written comments and emails may also contain information about the student/family economic situation, (i.e., food security status, access to technology, parental furlough or layoff status). This information, if released, would constitute an unwarranted invasion of privacy and may affect the individuals’ standing in the community. In such cases, the information may be protected under Exemption (c).” The School contends, “the essential fact here is not that these exemptions apply, but rather, that the requested documents must be reviewed to determine whether FERPA – which, by law would require redacting or withholding the record – or another exemption to the Public Records Law permits redacting of identifiable information.” With respect to cost, the School explains “Ms. Mahr is the lowest paid employee capable of performing this review; the costs associated with Ms. Mahr are $87.91 per hour. She has the authority to review these emails, which may include confidential privacy information. She also has the full understanding of FERPA and can interpret that law as it applies to records. However, rather than requesting to assess fees at the actual rate that the Town will be charged for Ms. Mahr’s time, the School Department only seeks permission to charge $41.48 per hour, which is the hourly rate of Laura Ball, Ms. Mahr’s Confidential Administrative Assistant, to review the 16 emails.” Further, Anne Beauchamp, the PreK-12 Coordinator of Curriculum, Assessment, and Accountability is the School Department employee with the most knowledge of the data cells and their linkage, and she will review, segregate, and redact the 982 “written comment” fields in the web-based survey host document at her hourly rate of $66.42 per hour. I find the School has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. Further I find that in light of the factors listed in the School’s petition, the School may assess a fee for time spent segregating and redacting responsive records at $41.48 an hour for responsive emails and $66.42 per hour for the web-based survey host document. See G. L. c. 66, § 10(d)(iv). --

Thomas J. Harrington, Esq. SPR20/0816 Page 4 May 27, 2020 Conclusion For the reasons described above, the School is allowed to assess a fee for the time spent segregating and redacting responsive records and may charge in excess of $25 per hour for the provision of the requested records as allowed for in G. L. c. 66, § 10(d)(iv). Further, this office encourages Mr. Howes and the School to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § l0(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Any fee estimate by the School must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Richard Howes Cynthia Mahr