Sarah Gannon v. Winchester, Town of - Public Schools (SPR 20211447)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 17, 2021 SPR21/1447 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 Sarah Gannon 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 June 1, 2021, Ms. Gannon requested, “…educational records as well as a FOIR so that we may receive any written communication/emails regarding our daughter from the time she began school in 2018 until the present.” The School provided a response on June 4, 2021, which included a fee estimate. Unsatisfied with the School’s response, Ms. Gannon petitioned this office and SPR21/1447 was opened as a result. Fee Estimates - Municipalities 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 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. SPR21/1447 Page 2 June 17, 2021 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 June 4th response In its June 4, 2021 response, the School indicates, “[t]here were approximately 3,425 documents that fall within your search parameters.” The School further indicates the estimated time to review and redact the records is 48 hours, with the first two hours subtracted, at $25.00 per hour for a total estimated cost of $1,150.00. The School states, “[a]lthough the public records law limits the District to assessing a maximum rate of $25.00 per hour, please note that 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 Exemptions (a) and (c). With respect to its Exemption (a) claim, 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’) …” For its Exemption (c) claim, the School explains the records may contain “. . . medical files or information relevant to a student’s disability, or materials/data related to a student, the disclosure of which may constitute an unwarranted invasion of personal privacy.” The School further explains, “[t]his estimate is based on forty-eight (48) hours spent reviewing and redacting the responsive documents. The 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 need to be consulted throughout this process.” Based on the School’s response, it is unclear if the School is assessing a fee for segregating and redacting records under Exemption (c). The School is reminded that under the Public Records Law, a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law under Exemption (a) 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)(ii); 950 C.M.R. 32.06(4). The School must clarify this matter. Further, this office encourages Ms. Gannon and the School 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

Judith A. Evans, Ed.D. SPR21/1447 Page 3 June 17, 2021 the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the School is to provide a response to Ms. Gannon in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Sarah Gannon