John Tighe v. Winchester, Town of - Public Schools (SPR 20210519)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 4, 2021 SPR21/0519 Dr. Judith A. Evans, Ed.D. Superintendent Winchester Public Schools 40 Samoset Road Winchester, MA 01890 Dear Dr. Evans: I have received your petition on behalf of the Winchester Public School Department (Department) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On February 26, 2021, John Tighe requested several categories of records invoving School emails:  [E]mail communication between all members of the Winchester School Committee and the Superintendent of Winchester Public Schools as well as communication between The Superintendent of Winchester Schools and Jennifer Murphy – Director of Winchester Board of Health. :  More specifically I would like the following  All email correspondence between Superintendent Evans and School Committee Chairperson Brian Vernaglia and Committee members Karen Maruyama Bolognese, Vice-Chair, Michelle Bergstrom, Chris Nixon, Zeina Marchant from August 1, 2020 through October 31, 2020.  All email correspondence between Superintendent Evans and School Committee Chairperson Brian Vernaglia and Committee members Karen Maruyama Bolognese, Vice-Chair, Michelle Bergstrom, Chris Nixon, Zeina Marchant from Jan 1, 2021 through February 26, 2021.  All email correspondence between Superintendent Evans and Jennifer Murphy – Director of Winchester Board of Health from August 1, 2020 through October 31, 2020  All email correspondence between Superintendent Evans and Jennifer Murphy – Director of Winchester Board of Health from Jan 1 2021 through February 26, 2021. 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, Ed.D. SPR21/0519 Page 2 March 4, 2021 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 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 an agency's petition to allow the agency 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 agency 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).

Dr. Judith Evans, Ed.D. SPR21/0519 Page 3 March 4, 2021 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). Current Petition In its petition dated March 1, 2021, the Department requests approval to assess fees for costs associated with responding to a public records request. The Department states that after an “intensive search, the District learned it possesses 8,959 documents responsive” to the request. The Department further states that it “will take approximately one hundred and forty-nine (149) hours to review and redact all of the records.” The Department anticipates many of the documents will fall under Exemptions (a) and (c) to the Public Records Law. The Department indicated, under Exemption (a), information may be “exempted from disclosure by statute, because they would implicate student record/education record information under 603 CMR 23.00 and the Family Educational Rights and Privacy Act.” Additioanly, the Department asserted many of the records may contain “communications between the Superintendent, School Committee members and Director of the Board of Health [that] will contain advice provided by Town and District attorneys.” Finaly, under Exemption (c) the Department explains that records “are highly likely to contain personnel and medical information relevant to District employees, especially in cases involving exposure to COVID-19.” In conclusion, the Department emphsises that “it is more than willing… to communicate with the requestor to suggest reasonable modifications of the scope of the request that would enable more efficient and affordable record access to the requestor.” Conclusion In light of the Department's petition, I find the Department has met its burden to explain how the response could not be prudently completed without the redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. This office encourages Mr. Tighe and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Any fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, Mr. Tighe 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).

Dr. Judith Evans, Ed.D. SPR21/0519 Page 4 March 4, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: John Tighe