David Forth v. Whitman Hanson Regional School District (SPR 20202210)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 19, 2020 SPR20/2210 George M. Ferro, Jr. Records Access Officer Whitman-Hanson Regional School District 610 Franklin Street Whitman, MA 02382 Dear George Ferro Jr.: I have received your petition on behalf of the Whitman-Hanson Regional School District (District) requesting an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); 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. On November 2, 2020, Mr. Forth requested two categories of records: “- All minutes, recordings and related records given to The Committee from The State or either towns from the 1991-1994 Whitman-Hanson Regional School Committee. - All minutes, recordings and related records given to The Committee from The State or either towns from the 2006-2008 Whitman-Hanson Regional School Committee.” Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and 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

George M. Ferro, Jr. SPR20/2210 Page 2 November 19, 2020 (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). In its petition dated November 12, 2020, the District requests “an extension of time to respond to the balance of the requests of 30 business days.” The District indicates “[t]he magnitude or difficulty of a request, and receipt of multiple requests from the same requestor, unduly burdens the other responsibilities of the agency or municipality such that an agency or municipality is unable to complete the request within the time provided. There are also a limited number of people who can review and access the records sought by Mr. Forth, currently only one or two confidential administrative assistants available that would need to work beyond their regular work day or outside their contractual obligation to accomplish this task.” The District further indicates it “… believes that the requests will require a need to search for, collect, segregate or examine records; require detailed review in order to determine the appropriate redaction so that there is no unlawful disclosure; and, given the limited staff available to perform these tasks.” The District notes they “requested Mr. Forth narrow the scope of the requests.” The District also notes it “…was able to fulfill a portion of the records request…” I find that in light of the capacity of the District to produce the request without the extension, as well as efforts undertaken by the District in fulfilling the current request and previous requests, the Town has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the District an extension of 30 business days to furnish copies of records responsive to Mr. Forth’s request. See G. L. c. 66, § 10(c). To the extent possible, the District must provide responsive records on a rolling basis. Petitions for ability 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,

George M. Ferro, Jr. SPR20/2210 Page 3 November 19, 2020 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). 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. In its petition, the District requests to assess a fee in responding to Mr. Forth’s request. The District indicates “[g]iven the broad nature of his request, Mr. Forth’s requests will require that someone review individual email and/or correspondence to ensure that the information does not contain student record information and/or personnel record information that is exempt from disclosure under the Public Records Law.” Although the District states that the responsive records may contain student record/or personnel information, it has not provided information regarding why such records are likely to contain exempt information. Accordingly, I find the District has not met its burden to explain how the response could not be prudently completed without segregation or redaction. Please note, however, this does not preclude the District from charging for segregation and redaction that is required by law. Conclusion Accordingly, I find the District has established good cause for a time extension of 30 business days as described above. However, the District’s petition to assess a fee for segregation and redaction cannot be granted at this time. To the extent the responsive records contain the exempt information required by law, the District may assess a fee for segregation and redaction. This office encourages Mr. Forth and the District to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(an agency or 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 agency or

George M. Ferro, Jr. SPR20/2210 Page 4 November 19, 2020 municipality to produce records sought more efficiently and affordably). Any fee estimate by the District must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, Mr. Forth 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: David Forth