Lisa A. Hack v. Wellesley, Town of - Public Schools (SPR 20211485)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 21, 2021 SPR21/1485 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) requesting a waiver of statutory limits on fees that may be assessed in responding to a public records request and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); 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 28, 2021, Lisa Hack requested “all documents to or from anyone associated with or employed at the elementary school commonly known as Sprague Elementary School (‘Sprague’)” pertaining to identified abbreviations and phrases. Petitions 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 a municipality’s petition to allow the municipality 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. 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. SPR21/1485 Page 2 June 21, 2021 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; 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). 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 14, 2021 petition, the Department requests “a waiver of statutory limits on fees for responding to a public records request, dated May 28, 2021. [The Department] request 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 states, “[t]he majority of the records requested are in the form of emails. Specifically, the School Department estimates that there are 5,180 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

Alexandra B. Rubin, Esq. SPR21/1485 Page 3 June 21, 2021 (‘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 records likely contain PII—specifically, in the form of student names and indirect identifiers. The Department must therefore review each record to determine if they can be released or must instead be withheld or redacted pursuant to FERPA.” The Department also cites Exemption (c), explaining the records “may include information concerning personal issues, including those affecting mental health, with respect to, for example, race. In response to such correspondences, 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 the “exemption applies to inter- Department communications relating to policy positions being developed by the Department (but does not include reasonably completed factual studies or reports on which the development of such policy positions has been or may be based).” The Department further cites attorney-client privilege, stating “[s]taff may also receive information from the Town or Department attorneys. It is possible that such information may not be subject to release.” The Department “estimates that it will take approximately 3 minutes, on average, to review, and as necessary, redact each of the 5,180 records (total of 259 hours).” 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. [Ms. Mahr] also has the full understanding of FERPA and can interpret that law as it applies to records.” The Department stated “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 $43.86 per hour, which is the hourly rate of Laura Ball, the Administrative Assistant to the Assistant Superintendent of Finance and Operations.” The Department contends, “the increase in the fee from $25 per hour to $43.86 per hour is not only modest but is far less than the 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 Department’s willingness to charge only the hourly rate of Ms. Ball for the review of the emails. It is only fair to the citizens of Wellesley that the Department be allowed to recoup at least some of its costs in responding to this request.” Lastly the Department stated “there is no broader public interest to be served by limiting the cost of Ms. Hack’s access to these records. Ms. Hack has not documented any inability to pay the reasonable fee and the allowance of this fee petition is consistent with the previous determinations of this office. See SPR21/0344, SPR21/0921 (allowing charge of $43.86 per

Alexandra B. Rubin, Esq. SPR21/1485 Page 4 June 21, 2021 hour); SPR 21/0965 (allowing charge of $65.37 per hour); SPR 20/1013 (allowing charge of $66.42 per hour).” Conclusion I find the Town has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. Further I find that in light of the factors listed in the Town’s petition, the Town may assess a fee for time spent responding to the request at no more than $43.86 an hour. See G. L. c. 66, § 10(d)(iv). 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: Lisa Hack