John Hilliard v. Newton, City of - Public Schools (SPR 20201632)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 23, 2020 SPR20/1632 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/NPS) 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. Previous appeal The requested records were the subject of a previous appeal. See SPR20/1312 Determination of the Supervisor of Records (August 19, 2020). In my August 19th determination, I directed the School to revise its fee estimate. Accordingly, I ordered the School to provide Mr. Hilliard with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the School provided a response on September 3, 2020. Unsatisfied with the School’s fee estimate, Mr. Hilliard petitioned this office and this appeal, SPR20/1632, was opened as a result. This appeal pertains to item 3 only. 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 SPR20/1632 Page 2 September 23, 2020 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 ($.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 September 3rd estimate On September 3, 2020, the School states that it “. . . created a list to provide you with this information at no cost; if you would like copies of the actual reports, NPS must review and redact confidential student information as required under FERPA and 603 CMR 23.00 and allowed under Exemption A and Exemption C, as well as confidential personnel information exempted from disclosure under Exemption C of Public Records Law MGL 66.” The School provided the following fee estimate: Search conducted by the lowest paid employees capable of completing the necessary task from 21 schools for pertinent records during Covid-19 shutdown 5 hours Compilation, Review and Redact for confidential information, by the lowest paid employee capable of completing the necessary task as allowed under FERPA and 603 CMR 23.00 and under Exemption A and Exemption C, as well as confidential personnel information exempted from disclosure under Exemption C of Public Records Law MGL. 66, of investigatory records: 7 hours 10 hours (12 hours minus non-chargeable hours) @ $25.00/hr $250 . . .

Toby Romer SPR20/1632 Page 3 September 23, 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). In his appeal petition, Mr. Hilliard states the following: I note that my initial request for these records was Feb. 28, 2020, and at the school department’s requests, I agreed to additional time to complete this request due to the impact of the pandemic. I am uncertain why “capable of completing the necessary task from 21 schools for pertinent records during Covid-19 shutdown” is now being included as part of the cost estimate. I also note that it took six months from my initial request for records to receive a cost estimate that “explained with specificity why the indicated amount of time is required to produce the responsive records.” . . . These records relate to a matter of public importance -- issues of racial equity in the Newton Public Schools. . . . In its revised estimate, the School states “Compilation, Review and Redact for confidential information, by the lowest paid employee capable of completing the necessary task as allowed under FERPA and 603 CMR 23.00 and under Exemption A and Exemption C, as well as confidential personnel information exempted from disclosure under Exemption C of Public Records Law MGL. 66, of investigatory records: 7 hours[.]” In my August 19th determination, I indicated that “. . . the School’s [June 23rd] estimate does not make clear how many hours are being allocated to search, compile, redact and review the responsive records.” Based on the School’s response, it remains unclear how many hours it is allocating to each of the above tasks. The School must clarify this matter. Further, although the School may assess a fee for redacting confidential information from the responsive records under FERPA as it operates through Exemption (a), the School may not assess a fee for redacting records under Exemption (c). The School is reminded 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. See 950 C.M.R. 32.06(4)(g).

Toby Romer SPR20/1632 Page 4 September 23, 2020 Consequently, I find the School must revise its fee estimate. 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 within ten (10) business days. 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