Tom Moroney v. Winchester, Town of - Public Schools (SPR 20210453)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 8, 2021 SPR21/0453 Judith A. Evans, Ed.D. Superintendent Town of Winchester Public Schools 40 Samoset Road Winchester, MA 0289 Dear Dr. Evans: I have received the petition of Tom Moroney appealing the response of the Town of Winchester Public Schools (School District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 30, 2021, Mr. Moroney requested: “all 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.’” Mr. Moroney requested these records pertaining to three identified individuals. Prior appeal The School District provided a response on February 3, 2021, which included a fee estimate. Unsatisfied with the School District’s response, Mr. Moroney petitioned the Supervisor of Records (Supervisor) and the prior appeal, SPR21/0332, was opened. It was unclear from the School District’s fee estimate whether the School District is assessing a fee for segregation and redaction of content within the records under Exemption (c). In my February 18, 2021 determination, I advised that the School District may not assess for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor pursuant to G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); see also 950 C.M.R. 32.06(4). As a result, I ordered the School District to clarify this matter. See SPR21/0332 Determination of the Supervisor (February 18, 2021). Current appeal On February 22, 2021, the School District provided Mr. Moroney with a subsequent response. Unsatisfied with this response, Mr. Moroney petitioned the Supervisor, and the current appeal was opened. 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

Dr. Judith Evans SPR21/0453 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); see also 950 C.M.R. 32.06(4). The School District’s February 22, 2021 response In its February 22nd response, the School District indicates that, “[t]here are approximately 15,158 documents that fall within [Mr. Moroney’s] search parameters. The School District’s fee estimate assesses time for compilation, [segregation], possible redaction, and production of these records…” In its February 22nd response, the School District posits that the responsive records contain confidential student record information exempt under Exemption (a); specifically, the Family Educational Rights and Privacy Act (FERPA), and the Massachusetts Code of Regulations, 603 C.M.R. 23.00. The School District, states, “[e]ach document must be reviewed before it may be provided to [Mr. Moroney]; due to, the strong likelihood that [the records] contain information [exempt under FERPA and 603 C.M.R. 23.00].” The School District estimates that, “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 in the records if found, and the possibility that other individuals may be consulted throughout the process.” The School District continues to claim that in order to segregate and

Dr. Judith Evans SPR21/0453 Page 3 March 8, 2021 redact information exempted from Exemption (a), the School District must review/segregate each page at 1-1.25 minutes per page, including any redactions per page. In reviewing the School District’s February 22nd response regarding its fee estimate, it is unclear to what extent the estimated segregation and redaction time is attributed to segregation and redaction of information exempt through Exemption (a) of the Public Records Law and to what extent time is assessed for the segregation and redaction of medical and personal information. The School District must clarify this. Modification of the scope of the request In my February 18th determination, I also encouraged the parties to continue to communicate to facilitate and possibly limiting the providing records more efficiently and affordably. The School District has suggested a modification of the request; such as, “…modifying [Mr. Moroney’s] request to limited recipients, a shorter time duration, and use of the connector ‘and’ as opposed to ‘or’ will enable the [School] District to provide [Mr. Moroney] with a lower cost estimate and more efficient access to the requested documents.’” Conclusion Accordingly, the School District is ordered to provide a response in a manner consistent with this order, the Public Records Law and its Regulations within 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: Tom Moroney