Jimmy Kerlin v. Winchester, Town of - Public Schools (SPR 20212280)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 20, 2021 SPR21/2280 Dr. Frank Hackett Interim Superintendent of Schools Winchester Public Schools Office of the Superintendent 40 Samoset Rd. Winchester, MA 01890 Dear Dr. Hackett: I have received the petition of Jimmy Kerlin appealing the response of the Winchester Public Schools (School) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On August 19, 2021, Mr. Kerlin requested “[a]ny and all communications between the school committee, the superintendent, Principles, teachers and school counselors regarding critical race theory and systemic racism.” The School provided a response on September 7, 2021. Unsatisfied with the School’s response, Mr. Kerlin petitioned this office and this appeal, SPR21/2280, was opened as a result. Fee estimate – municipalities 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 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). 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

Dr. Frank Hackett SPR21/2280 Page 2 September 20, 2021 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). The School’s September 7th Response On September 7, 2021, the provided Mr. Kerlin with a response indicating that “[a] good faith estimate of the fee for the time needed to produce the records responsive to your request is “$1,700.00.” The School asserted “[t]he documents responsive to [Mr. Kerlin’s] request must be reviewed before [the School] can provide them due to the strong likelihood that they contain information that is specifically, or by necessary implication, exemption by statute (M.G.L. c. 4, § 7(26)(a)(c); G. L. c. 71, §§ 34D, 34E; 20 U.S.C. § 1232g).” In its September 7th response, the School explained, “[t]his estimate represents seventy (70) hours of employee time, at $25.00 per hour, searching for and segregating records. To be more specific, this estimate represents ten (10) hours of employee time, at $25.00 per hour, searching for records, and sixty (60) hours of employee time, at $25.00 per hour, segregating and redacting records. Please be advised that the actual final cost of producing these records might vary from this good faith estimate. As a courtesy to [Mr. Kerlin] as a Winchester parent, [the School] will reduce the final cost of document production by approximately 25% for an adjusted good faith estimate total of $1,310.” The School stated, “[t]he District will commence gathering and redacting documents responsive to this request upon receipt of his estimate fee.” Based on the School’s September 7th response, it is unclear why the School requires the amount of time listed above to produce the requested records and for “gathering and redacting documents.” The School must provide further information on the details regarding the tasks involved, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The School must clarify these matters, including the time that is needed to perform segregation and redaction as required by law. Conclusion Accordingly, the School is ordered to provide Mr. Kerlin with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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.

Dr. Frank Hackett SPR21/2280 Page 3 September 20, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jimmy Kerlin Michael J. Joyce, Esq