Andrew P. Lawendowski v. Southern Worcester County Regional Vocational School District (SPR 20201255)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 4, 2020 SPR20/1255 Antoine Fares, Esq. Norris, Murray & Peloquin, LLC 315 Norwood Park South Norwood, MA 02062 Dear Attorney Fares: I have received your petition on behalf of the Southern Worcester County Regional Vocational Technical School District (District) seeking permission to charge for time spent segregating or redacting responsive records at a rate of $220.00 per hour. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the District furnished a copy of this petition to the requestor. Id. In a letter dated July 14, 2020, Andrew P. Lawendowski requested twenty one categories of records concerning the Bay Path Regional Vocational High School. 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. 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 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

Antoine Fares, Esq. SPR20/1255 Page 2 August 4, 2020 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 July 27th petition, the District petitions the Supervisor “to allow the District to charge our regular municipal rate of $220.00 per hour to review and redact information from five hundred and five (505) student admission applications totaling about 8,585 pages...It is estimated that this task will take about forty-two (42) hours to complete, including the preparation of the required privilege log.” The District notes, “[t]o comply with the request, the District must produce five hundred and five (505) student admission applications which contain information that constitute educational records that must be redacted pursuant to Family Educational Rights and Privacy Act (‘FERPA’) and the Massachusetts student records law, and are therefore exempt from the Massachusetts Public Records Law pursuant to M.G.L. c. 4, §7(26) exemptions (a) and (c).”

Antoine Fares, Esq. SPR20/1255 Page 3 August 4, 2020 The District states “[a]n attorney at [Norris, Murray & Peloquin, LLC] is the only person connected with the District with the requisite knowledge to review the students records and determine what information must be redacted and/or is otherwise exempt from disclosure pursuant to FERPA and the Massachusetts student records law.” The District posits “[i]t is a particularly critical task given that any disclosure of student records protected by law would lead to a violation of the students’ privacy and, therefore, subject the District to unwarranted liability...For the above reasons, the Supervisor of Public Records should allow this petition to charge Mr. Lawendowski a rate in excess of $25/hour up to our municipal hourly rate of $220/hour.” Based on the information provided in its petition regarding the type of responsive records and the extent to which these records may contain exempt martial, I find the District 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. See G. L. c. 66, § 10(d)(iv). With respect to the District petition to be allowed to charge in excess of $25 per hour, I find that in light of the factors in G. L. c. 66, § 10(d)(iv), the District may assess a fee of $75.00 per hour to review and redact responsive records. Conclusion For the reasons described above, I will allow the District to assess a fee for the time spent segregating and redacting responsive records. Further the District may charge for redaction fees in excess of $25 per hour for the provision of the requested records. However, this allowance is limited to the rate of $75 per hour. Please note, Mr. Lawendowsk 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: Andrew P. Lawendowsk Superintendent Kyle J. Brenner

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