Maria D. del Rosario v. Nashoba Regional School District (SPR 20210235)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 8, 2021 SPR21/0235 Kevin S. Freytag, Esq. Murphy, Hesse, Toomey & Lehane, LLP Nashoba Regional School District 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Freytag: I have received your petition on behalf of the Nashoba Regional School District (District) requesting an extension of time to produce records, as well as permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. 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 January 15, 2021, Dr. Maria D. del Rosario requested six (6) categories of records related to a named student. Specifically, in request 6, Dr. del Rosario requested “[a]ll psychological, psychiatric, and/or counseling records relating to the students that were identified ore [sic] should have been identified in the previous public records request No5 above.” 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 (vi) the public interest served by expeditious disclosure. 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

Kevin S. Freytag, Esq. SPR21/0235 Page 2 February 8, 2021 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 February 1, 2020 petition, the District states “[b]ased on the number of hours calculated above, the District requests, pursuant to G. L. c. 66, § 10(b)(vi), thirty (30) additional business days to respond to the request.” The District indicates “it will take approximately four (4) hours, per student, to redact the records to prevent the disclosure of student information. Accordingly, the total estimate of time necessary to respond to Section 6 of the request is 119 hours (17 students * 7 hours).” The District explains “[t]here were seventeen (17) other students placed in the transitions program while STUDENT was in NRSD's transition program. The District estimates that it will take a least three (3) hours to search for and then review each of their records for any records that are responsive to Section 6 of the request. That includes, reviewing the entire file for the years STUDENT was in the Transitions program and then reviewing all testing conducted for each as well as each IEP to determine students who had counseling in their IEPs. Each IEP for a student with counseling will require a review of progress reports, as this is where records responsive to Section 6 of the request will likely exist.” I find that in light of the need to search for, collect, segregate; as well as the need to redact the records to prevent unlawful disclosure, the District 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 Dr. del Rosario’s request. See G. L. c. 66, § 10(c). To the extent possible, the District must provide responsive records on a rolling basis. Petition 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

Kevin S. Freytag, Esq. SPR21/0235 Page 3 February 8, 2021 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 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). In its February 1st petition, the District “requests that it be allowed to charge $25 per hour to review the records requested that are responsive to Section 6 of the request.” The

Kevin S. Freytag, Esq. SPR21/0235 Page 4 February 8, 2021 District indicates “[t]he review and redaction will be completed by salaried District employees, whose calculated hourly rate exceeds $25.” The District explains “[a]ll records that identify a student are exempt from disclosure under exemption (a) to the Public Records Law as they are records ‘specifically or by necessary implication exempted from disclosure by statute.’ G. L. c. 4, § 7(26)(a). The specific statute in question is Mass. Gen. L. ch. 71, § 34D, which addresses student records. That statute also references student record regulations, 603 CMR 23.00 et. seq., which specifically prohibit the disclosure of student record information to a third party.” Where the District is petitioning to charge for time spent segregating and redacting that is required by law, it is unnecessary to opine on the District’s fee petition. See G. L. c. 66, § 10(d)(iii). To the extent the responsive records contain Exemption (a) information, the District may assess a fee for segregation and redaction. Conclusion Accordingly, I find the District has established good cause for a time extension of 30 business days as described above. Further, it is unnecessary to opine on the District’s fee petition where they may permissibly charge for segregation and redaction that is required by law without approval of the Supervisor of Records. Any fee estimate by the District must be in compliance with the Public Records Law and its Access Regulations. Please note, Dr. del Rosario 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: Maria D. del Rosario, MD