Mike Bush v. Acton-Boxborough Regional School District (SPR 20212540)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 8, 2021 SPR21/2540 Andrew Shen Acton-Boxborough Regional School District 15 Charter Road Acton, MA 01720 Dear Mr. Shen: On October 1, 2021, this office received your petition on behalf of the Acton- Boxborough Regional School District (District) seeking an extension of time to produce records 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). As required by law, the District furnished a copy of their petition to the requestor, Mike Bush. G. L. c. 66, § 10(c). On September 18, 2021, Mr. Bush requested three categories of records concerning the District and staff emails. Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). 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

Andrew Shen SPR21/2540 Page 2 October 8, 2021 If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). 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 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; 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 estimate 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

Andrew Shen SPR21/2540 Page 3 October 8, 2021 ($.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). 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). Current Petition In its October 1st pettion, the District states the “…records request is likely to require over ten hours of work from an employee to redact and segregate records. The requests are broad in scope and regard the communications of the Superintendent other administrators – two employees who often correspond regarding students, employee matters, and other potentially exempt records.” The District notes that “[t]he broad nature of [the] request resulted in a potential 635 documents. The District intends to withhold documents that are exempt from disclosure under the Statutory Exemption (a) and the Privacy Exemption (c). See Student Records Law MGL Ch. 71 § 34D, 34E; FERPA 20 USC §1232G; and Right of Privacy MGL Ch. 214 §1B.” In addition, the District expressed that a request was made for emails from an attorney who provides the District legal advice. The District contends that “[t]hese records are not public record because they are confidential communications between a governmental entity and its legal counsel undertaken for the purpose of obtaining legal advice or assistance.” The District states that the attorney “…does not have any involvement with the District in his personal capacity. Emails within the District’s custody and control to/from [the Idenifeid indiviudal] relate to matters of regulatory compliance, employment matters, and existing/anticipated litigation.” With respect to time, the District seeks 15 bussienss days to furnish records “…due to the volume of the records and the need to review each record for segregations / redactions required by law.” Conclusion I find that the District has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or

Andrew Shen SPR21/2540 Page 4 October 8, 2021 segregation. To the extent the responsive records contain the exempt information as described above, the District may assess a fee for segregation and redaction. I find that in light of the volume of responsive records the District has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the District an extension of 15 business days to furnish copies of records responsive to Mr. Bush’s request. See G. L. c. 66, § 10(c). The District is advised it must provide the records in a manner consistent with the Public Records Law and its Access Regulations. Please note, Mr. Bush 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: Mike Bush