Maureen Ronayne v. Winchester, Town of - Public Schools (SPR 20210452)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 8, 2021 SPR21/0452 Judith A. Evans, Ed.D. Records Access Officer Winchester Public Schools 40 Samoset Road Winchester, MA 01890 Dear Dr. Evans: I have received the petition of Maureen Ronayne appealing the response of the Winchester Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 30, 2021, Ms. Ronayne requested, “[a]ll emails and text messages for the period from August 1, 2020 through January 30, 2021 that reference any of these terms: ‘Dyslexia’ or ‘literacy’ or ‘evidenced based’ or ‘science of reading’ or ‘reading’ of the following people: [a]ll of Members of the School Committee[.]” Previous appeal The requested records were subject to a previous appeal. See SPR21/0316 Determination of the Supervisor of Records (February 17, 2020). In my February 17th determination, I found it is unclear if the School is assessing a fee for segregating and redacting records under Exemption (c). The School was ordered to provide a response to Ms. Ronayne in a manner consistent with the order, the Public Records Law and its Regulations. The School provided said response on February 22, 2021. Unsatisfied with the School’s response, Ms. Ronayne petitioned this office, and SPR21/0452 was opened as a result. The parties were also encouraged to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a 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 to produce records sought more efficiently and affordably). I understand a staff attorney of the Public Records Division contacted the parties regarding this matter. This office continues to encourage this communication. 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

Judith A. Evans, Ed.D. SPR21/0452 Page 2 March 8, 2021 Fee Estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records ----- custodian must provide the responsive records. 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 (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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The School’s February 22nd response In its February 22nd response, the School indicates, “[t]here were approximately 1,622 documents that fall within your search parameters.” The School further indicates the estimated time to review and redact the records is 27 hours, with the first two hours subtracted, for a total estimated cost of $625.00. The School states, “[a]lthough the public records law limits the District to assessing a maximum rate of $25.00 per hour…the hourly rate of the lowest-paid employee qualified to complete your request exceeds that rate.” The School indicates “[e]ach document must be reviewed before it may be provided to you due to the strong likelihood that they contain information [which] is exempt …” citing Exemption (a). The School explains the request “… implicates student record/education record information under 603 CMR 23.00 and the Family Educational Rights and Privacy Act (‘FERPA’). Terms such as ‘dyslexia’ and ‘literacy’ and ‘reading’ will likely produce records relative to a child’s learning disability or other student record information...” The School further explains “because of the confidential student record and medical information contained in these records, it will take an average of 1 – 1.5 minutes to review and redact each page. This number is based on the need to carefully read each page, make the necessary determinations regarding whether the record contains exempt information, redact any confidential information contained

Judith A. Evans, Ed.D. SPR21/0452 Page 3 March 8, 2021 in the records if found, and the possibility that other individuals may need to be consulted throughout this process.” In camera inspection It is my determination that an in camera inspection of a representative sample of responsive records would facilitate a determination as to the reasonableness of the fee estimate; specifically it would shed light on the extent to which the records contain exempt information. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Conclusion The School is ordered to provide this office an unredacted copy of a representative sample of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Maureen Ronayne