John Hilliard v. Newton, City of - Public Schools (SPR 20201312)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 19, 2020 SPR20/1312 Toby Romer Newton Public Schools Newton North High School 100 Walnut Street Newton, MA 02460 Dear Mr. Romer: I have received the petition of John Hilliard of the Boston Globe appealing the response of the Newton 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 February 28, 2020 and June 15, 2020, Mr. Hilliard requested “. . . the following public records on incidents of hate crimes, hate speech, bias, or discrimination in the Newton Public Schools from Jan. 1, 2015, to the present: [1] District Administration reports to the School Committee [2] School Resource Officer (SRO) reports to school administrators, including comprehensive annual reports [3] School reports of Mandatory Reportable Incidents to police of any incident involving an actual or suspected hate crime or violation of civil rights. [4] [documentation regarding a] two-page long list of racial incidents that have occurred in the schools during their public meeting earlier this month.” The School’s initial responses acknowledged receipt of the request, sought clarification and requested an additional 15 business days to respond to the request. Subsequently, on June 23, 2020, the School provided a response indicating it does not possess records responsive to Items 1 and 2 and providing records responsive to Item 4. Regarding Item 3, the School provided a fee estimate. Objecting to the fees, Mr. Hilliard petitioned this office and this appeal, SPR20/1312, was opened as a result. Fee estimates – municipalities 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 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

Toby Romer SPR20/1312 Page 2 August 19, 2020 ($.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 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 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). The School’s June 23rd fee estimate In the School’s fee estimate, it states that “[i]n the process of searching our records we created a master list of incidents with the date, location, student/staff name, type of incident and whether it was reported to the Newton Police Department. It will take far less time to redact this list than the actual documents so there would be no charge to you if you chose this option.” The School provides the following estimate: Search, Compilation, Redaction and Review for confidentiality of investigatory records: Estimate #1: 10 hours (12 hours minus non-chargeable hours) @ $25.00/hr $250 NPS plans to provide most, if not all, of the responsive records to you in electronic format and NPS will waive the fee for the cost of any storage device. Moreover, if any photocopies need to be made, NPS will waive the fee for copies. TOTAL ESTIMATE #1 $250 Search, Compilation, Review and Redact for confidentiality of spreadsheet containing information and data responsive to your request: Estimate #2: 0 hours (2 hours minus non-chargeable hours) @ $25.00/hr $0 TOTAL ESTIMATE #2 $0

Toby Romer SPR20/1312 Page 3 August 19, 2020 Fees to search for, compile, segregate, redact or reproduce a record request The Regulations provide that in cases where necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § 10(d); see also 950 C.M.R. 32.07(2). Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. A municipality may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, § 10(d); see also 950 C.M.R. 32.06(4). The School indicated that it is assessing a fee for approximately 10 hours for “Search, Compilation, Redaction and Review for confidentiality of investigatory records.” Based on the School’s response, it is uncertain how redaction is required by law in this matter. For example, it is not clear what type of information is contained in the responsive records, and which statutes, if any, require redaction. Please note that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). I am not aware that the School has submitted a petition under G. L. c. 66, § 10(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records; therefore, the School may not currently seek permission to assess fees for this February 28th request through a petition under G. L. c. 66, § 10(d)(iv). See 950 C.M.R. 32.06(4)(g). As such, I find the School must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Further, I find the School has not explained with specificity why the indicated amount of time is required to produce the responsive records. Specifically, the School’s estimate does not make clear how many hours are being allocated to search, compile, redact and review the responsive records. The School must clarify this estimate. Also, the School’s June 23rd estimate assessed 10 hours at $25.00 per hour for a total of $250.00 to provide the records responsive to Item 3. Based on this response, it is unclear whether $25.00 is the lowest paid hourly rate for the employee capable of completing the tasks necessary to produce the records. See G. L. c. 66, § 10(d)(iii) Consequently, I find the School must revise its fee estimate, or provide a further explanation of how the fee assessed in its June 23rd response is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the School is ordered to provide Mr. Hilliard with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as

Toby Romer SPR20/1312 Page 4 August 19, 2020 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: John Hilliard