Kara Bell v. Wellesley, Town of - Public Schools (SPR 20212034)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 16, 2021 SPR21/2034 Alexandra B. Rubin, Esq. Miyares and Harrington LLP 40 Grove Street, Suite 190 Wellesley, MA 02482 Dear Attorney Rubin, On August 12, 2021, I received your petition on behalf of the Wellesley Public Schools (School) seeking permission to charge for time spent segregating or redacting responsive records as well as a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(c), (d)(iv). As required by law, the School furnished a copy of its petition to the requestor, Kara Bell of Judicial Watch. Id. On July 30, 2021, Ms. Bell requested “communications sent during the 2020-2021 school year to Dr. Charmie Curry, Superintendent David Lussier, Wellesley Middle School Principal Mark Ito, and Wellesley High School Principal Dr. Jamie Chisum. [The] specific search terms [to] include [are] ‘BLM Flag’ and ‘Black Lives Matter flag.”’ 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). The second prong of the test is whether the fee represents an actual and good faith 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. SPR21/2034 Page 2 August 16, 2021 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 August 12th pettion, the School states, “I am writing to petition for a waiver of statutory limits on fees for responding to a public records request, dated July 30, 2021. I request authorization to charge a rate higher than $25 per hour, as further described below, for actual time spent by the Department to segregate and redact the requested records.” The School “…estimates that there are 238 emails responsive to the request. It is likely that the Department may withhold many of these emails, in full or in part, because they are subject to one or more of the exemptions to the Public Records Law.” The School cites Exemption (a) noting that “…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

Alexandra B. Rubin, Esq. SPR21/2034 Page 3 August 16, 2021 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. ‘Education records’ means those records that are: (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution. 34 C.F.R. § 99.3.” The School states, “Ms. Bell has requested records and communications to and from Department employees, which include the terms ‘Black Lives Matter flag’ and ‘BLM Flag.’ The 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. While there are some exemptions to FERPA, 34 C.F.R. §§ 99.30 and 99.31, this determination must be made on a case-by-case basis. Therefore, each record must be reviewed to ensure that PII is not released in violation of the law.” The School further contends that “[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 School cites Exemption (c) noting that “[i]t is possible that some of these records contain information regarding specific students, which 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. These correspondences, if disclosed, would constitute an unwarranted invasion of privacy. Further, students and parents may correspond with Department officials using personal email addresses. In such cases, the information may be protected under Exemption (c).” Citing Exemption (d), the Department posit that the “…administration may be developing policies and procedures regarding the Black Lives Matter flag and district strategy. These communications, to the extent that such policy is currently being developed, may be protected under Exemption (d).” The School notes that “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. She also has the full understanding of FERPA and can interpret that law as it applies to records. However, rather than requesting to assess fees at the actual rate that the Town will be charged for Ms. Mahr’s time, the 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.” Conclusion I find the School has met its burden to explain how the request could not prudently be completed without redaction or segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Further, I find the School has established how it may assess a fee for -- the time spent to segregate and redact these requested records at $43.86 per hour.

Alexandra B. Rubin, Esq. SPR21/2034 Page 4 August 16, 2021 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: Cynthia D. Mahr Kara Bell