Framingham Reporter v. Wellesley, Town of - Public Schools (SPR 20201013)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 29, 2020 SPR20/1013 Alexandra B. Rubin Town of Wellesley Public Schools 525 Washington Street Wellesley, MA 02482 Dear Ms. Rubin: I have received your petition on behalf of the Town of Wellesley (Town) seeking permission to charge $66.42 per hour in responding to a request made by Framingham Reporter. G. L. c. 66, § 10(c), (d)(iv). As required by law, the Town furnished a copy of its petition to the requestor. Id. On June 25, 2020, Framingham Reporter requested “…the raw responses to the Remote Learning Survey recently conducted by the Wellesley Public Schools.” Petitions to assess fees 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. 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). The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10(d)(iv). 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

Alexandra B. Rubin SPR20/1013 Page 2 June 29, 2020 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. Id. 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 petition to this office dated June 25, 2020 the Town states, “I am writing to petition for a waiver of statutory limits on fees for responding to a public records request.” The Town seeks “authorization to charge a rate higher than $25 per hour… to segregate and redact the requested records.” The Town estimates that the review of these records will “take approximately 18.5 hours to complete.” The Town cites Exemption (a) explaining that “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.” The Town additionally asserts that it will need to redact to prevent “disclosures of Personally Identifiable Information (‘PII’) contained in such records” including “[t]he student's name; [t]he name of the student's parent or other family members; [t]he address of the student or student's family; [p]ersonal identifiers, such as the student's social security number, student number, or

Alexandra B. Rubin SPR20/1013 Page 3 June 29, 2020 biometric record; [i]ndirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name; [i]nformation that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; and [i]nformation requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.” The Town also asserts that “some of the written comments may contain specific 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” as outlined under Exemption (c). The Town emphasizes that “[a]ll 252 respondents with a child with disabilities shared family characteristics with fewer than 9 other respondents. These unique or rare combinations allow students with disabilities to be identified.” The Town identifies “27,768 total cells in the electronic documents that comprise the raw data.” The Town identifies Ms. Mahr as the “lowest paid employee capable of performing this review; the costs associated with Ms. Mahr are $87.91 per hour.” However, the Town “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. She is the School Department employee with the most knowledge of the data cells and their linkage, and she will segregate and redact the information from the records containing the raw data.” The Town estimates it will take “approximately 1 minute, on average, to review, and as necessary, redact each of the 982 written comments.” I find the Town has met its burden to explain how the request could not prudently be completed without redaction or segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Further, I find the Town has established how it may assess a fee for the time spent to segregate and redact these requested records at $66.42 per hour. Conclusion For the reasons described above, the Town may assess a fee for the time spent to segregate and redact these requested records at a rate no higher than $66.42 per hour. 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).

Alexandra B. Rubin SPR20/1013 Page 4 June 29, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Framingham Reporter