Isabella Anderson v. Ayer Shirley Regional School District (SPR 20210740)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 1, 2021 SPR21/0740 Kevin F. Bresnahan, Esq. Murphy, Hesse, Toomey & Lehane, LLP 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Bresnahan: I have received your petition on behalf of the Ayer-Shirley Regional School District (District) requesting permission to charge for time spent segregating or redacting responsive records. 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. In a letter dated March 11, 2021, Isabella Anderson requested: “1. Any and all school committee member and superintendent emails from January 1, 2019 to present. 2. All School Committee Executive Session meeting minutes from July 1 2019 to present. 3. All implemented anti- racist, diversity, equity, and inclusion professional development, curriculum, programs, and training materials presented to district students, administrators, teachers, para-professionals, and staff prior to this email. 4. Any and all reports, emails, and grievances of discrimination, racism, and retaliation reported by students, parents, and staff to the title 9 coordinator, superintendent, and building administrators from January 1st 2017 to present.” Petitions to Assess Fees - Municipality 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). 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 F. Bresnahan, Esq. SPR21/0740 Page 2 April 1, 2021 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). Current Petition In its petition dated March 18, 2021, the District notes it “…responded to the request on March 25, 2021 in accordance with M.G.L. c. 66, § 10, and provided access to records responsive to Sections 2 and 3 of the request, and indicated that it would seek a fee to produce records in response to Sections 1 and 4 of the request.” The District “…anticipates that there will be a number of exemptions under the Public Records Law which apply to the information contained within the records responsive to Sections 1 and 4 of the request.” The District notes, “[s]ection 1 of the request seeks all emails of the Superintendent and school committee members over a period in excess of two years. This portion of the request is not limited in any way (e.g, by subject matter, keywords, or sender/recipient). As a result, the District will need to review each of the approximately 150,000 records that are responsive to the request to determine whether any exemptions apply to each record, and to make appropriate withholdings and/or redactions when necessary. In addition, the District has identified 3 records responsive to Section 4 of the request, and has confirmed that each of these records will require withholding or redaction.” The District cites Exemption (a) stating “… [i]t is expected that some emails sent and received by the Superintendent of Schools and school committee members are likely to contain student record information, as these individuals frequently send and receives emails to and from school staff and/or parents that relate to students and contain information protected from disclosure under the aforementioned statute. In addition, records responsive to Section 4 of the request, to the extent they involve complaints by, concerning, or on behalf of students, will include student record information.” The District cites Exemption (c) explaining, “…the Superintendent’s emails frequently relate to personnel matters, and include information which would be exempt as personnel and medical files or information. Similarly, emails of school committee members may contain information which would be exempt as personnel files or information, given the school

Kevin F. Bresnahan, Esq. SPR21/0740 Page 3 April 1, 2021 committee’s statutory role in hiring and supervising certain district-wide administration positions. In addition, some of the emails responsive to Section 1 of the request, as well as the records responsive to Section 4 of the request, are likely to include information which is exempt under the second clause of Exemption C, implicating privacy interests of specific individuals.” The District cites Exemption (d), asserting that “[t]he Superintendent, in her role as chief executive of the District, works with and makes recommendations to the School Committee on its ongoing policy-development function, and it is anticipated that there will be emails in the records responsive to Section 1 of the request which include such information which is exempt under Exemption D.” Additionally, the District notes “[t]he emails responsive to Section 1 of the request will include numerous emails between the Superintendent and/or school committee members and the District’s attorneys for the purpose of obtaining legal advice.” The District contends that “[t]he above sets forth the most likely exemptions that will apply to the responsive records, based on the District’s general knowledge of the content of such records generally. However, without reviewing all of the more than 150,000 responsive records, it is not possible to predict exactly which exemptions may apply. As such, the District reserves the right to assert additional exemptions to the extent any are discovered in the review of the responsive records.” Conclusion The District is permitted to charge for time spent segregating and redacting the requested records. To the extent the responsive records contain the exempt information as described above, the District may assess a fee for segregation and redaction. Further, this office encourages Ms. Anderson and the District to continue to communicate to facilitate providing records more efficiently and affordably. When preparing a fee estimate for the provision of the requested records, the District is advised to provide a detailed explanation to the requestor indicating why this estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The District shall provide a response to Ms. Anderson within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Anderson may appeal the District’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, the requestor may seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10A(c).

Kevin F. Bresnahan, Esq. SPR21/0740 Page 4 April 1, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mary Malone, Ed.D Isabella Anderson