Kara Bell v. Wellesley, Town of - Public Schools (SPR 20211372)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 7, 2020 SPR21/1372 Alexandra B. Rubin, Esq. Miyares and Harrington LLP 40 Grove Street, Suite 190 Wellesley, MA 02482 Dear Attorney Rubin: I have received your petition on behalf of the Town of Wellesley School Department (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to a public records request. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of their petition to the requestor. G. L. c. 66, § 10(d)(iv). On May 17, 2021, Kara Bell, on behalf of Judicial Watch, Inc., requested six categories of records related to “affinity spaces.” Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the agency to comply with the request. G. L. c. 66, § 10(d)(iv). 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 a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public 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 the request is not 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the 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

Alexandra B. Rubin, Esq. SPR21/1372 Page 2 June 7, 2021 fee is not designed to limit, deter or prevent access to requested public records. Id. 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). Current Petition In its June 1, 2021 petition, the Department requests “a waiver of statutory limits on fees for responding to a public records request, dated May 17, 2021. The Department “request[s] authorization to charge a rate higher than $25 per hour, as further described below, for actual time spent by the School Department to segregate and redact the requested records.” The Department indicates, “[t]he majority of the records requested are in the form of emails. Specifically, the School Department estimates that there are 5,900 emails responsive to the request.” The Department cites Exemption (a) indicating “…some of the emails may contain student information protected from release under the Family Education Rights Privacy Act (‘FERPA’), 20 U.S.C § 1232g and 34 C.F.R. Part 99. FERPA and its implementing regulations protect the privacy of students’ education records by limiting disclosures of Personally Identifiable Information (‘PII’) contained in such records.” The Department explains, “[t]he nature of these emails likely contain PII—specifically, in the form of student names and indirect identifiers. The School Department must therefore review each record to determine if they can be released or must instead be withheld or redacted pursuant to FERPA.”

Alexandra B. Rubin, Esq. SPR21/1372 Page 3 June 7, 2021 The Department also cites Exemption (c) explaining, “[t]he request asks for records identifying any topics discussed in affinity spaces. It would not be uncommon for students to discuss personal issues, including those affecting mental health, with respect to, for example, race or gender. In response to such discussions, School Department staff may communicate amongst each other and/or the student or the student’s parent/guardian about such concerns.” The Department cites Exemption (d) indicating “[t]he School Department may be developing policies and procedures regarding affinity spaces and district strategy regarding such spaces. These communications, to the extent that such policy is currently being developed, may be protected under Exemption (d).” The Department further cites attorney-client privilege stating “[t]he School Department members may also receive information from the Town or Department attorneys.” The Department indicates “Ms. Mahr is the lowest paid employee capable of performing this review; the costs associated with Ms. Mahr are $87.91 per hour. She has the authority to review these records, which may include confidential privacy information… rather than requesting to assess fees at the actual rate that the Town will be charged for Ms. Mahr’s time, the School Department only seeks permission to charge $43.87 per hour, which is the hourly rate of Laura Ball, the Administrative Assistant to the Assistant Superintendent of Finance and Operations.” The Department notes “…it is not uncommon for School Department staff…to contact Town Counsel to seek an opinion about a particular record…[t]he School Department will incur an expense associated with Town Counsel’s review. An associate in my office charges $185 per hour. The School Department is not seeking to recover any costs associated with Town Counsel’s review of this request, if necessary.” The Department contends “the increase in the fee from $25 per hour to $43.87 per hour is not only modest but is far less than the School Department will actually incur in responding to the request. The fee is also not designed to limit, deter, or prevent access to the records, as demonstrated by the School Department’s willingness to charge only the hourly rate of the Ms. Ball for the review of the emails. It is only fair to the citizens of Wellesley that the School Department be allowed to recoup at least some of its costs in responding to this request.” Given these records may contain confidential information under FERPA and/or other legal privilege exempting the material from public disclosure under the Massachusetts Public Records Law, I find the Department has met its burden to explain how the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). However, -- given the public interest served by limiting the cost of public access to the requested records, the fee shall not be more than $25 per hour.

Alexandra B. Rubin, Esq. SPR21/1372 Page 4 June 7, 2021 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 redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Department may assess a fee not more than $25 per hour for segregation and redaction. Please note, the requestor 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: Kara Bell, Judicial Watch, Inc.