Ronald Alexander v. Wellesley, Town of - Public Schools (SPR 20200882)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 10, 2020 SPR20/0882 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 Ronald Alexander. 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 28, 2020, Mr. Alexander requested, “all raw responses to the ‘Remote Learning Survey’ conducted by the Wellesley Public Schools and which was discussed during the Wellesley School Committee meeting on May 12, 2020.” 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. SPR20/0882 Page 2 June 10, 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 June 3rd 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.” The School estimates “that this review will take approximately 18.5 hours to complete.” The School explains,“[t]he raw responses to the survey included long and brief ‘written comment’ fields as well as multiple choice and multiple mark items. The raw responses are contained in electronic records issued by a web-based host. It is likely that the School Department will need to redact portions of the requested records with respect to the parent/guardian responses because they are subject to one or more of the exemptions to the

Thomas J. Harrington, Esq. SPR20/0882 Page 3 June 10, 2020 Public Records Law.” The School cites Exemption (a) claiming, “some of the information contained in the raw responses 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. ‘Education records’ means those records that are: (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution.” The School cites Exemption (c) claiming “[t]he IEP status of a student directly implicates personal medical information that must be protected from public disclosure. Additionally, the written comments, and data cell linkage, 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.” The School posits, “[t]he essential fact here is not that these exemptions apply, but rather, that the requested records 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. The School Department cannot merely provide Mr. Alexander with all of the potentially responsive records. The School Department must perform this necessary review.” The School expressed, “[t]here are 27,768 total cells in the electronic documents that comprise the raw data. The parent/guardian raw responses contain 982 written comments and 26,786 other fields. These fields are separated into 41 item columns that correspond to individual survey questions.” 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 records, 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 $66.42 per hour, which is the hourly rate of Anne Beauchamp, the PreK-12 Coordinator of Curriculum, Assessment, and Accountability.” Further, “[Ms. Mahr] estimates that it will take approximately 1 minute, on average, to review, and as necessary, redact each of the 982 written comments. Additionally, she estimates that it will take approximately 3 minutes, on average, to segregate and redact the responses for each of the 41 individual item columns. Thus, with 982 written comments and 41 item columns, it will take approximately 18.5 hours to segregate and redact these records.” 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 $66.42 per hour. See G. L. c. 66, § 10(d)(iv).

Thomas J. Harrington, Esq. SPR20/0882 Page 4 June 10, 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. Alexander and the School to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § l0(b)(vii) (a municipality 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 municipality 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: Ronald Alexander Cynthia Mahr