John Muckle v. Wellesley, Town of - Public Schools (SPR 20212603)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 14, 2021 SPR21/2603 Cynthia D. Mahr Assistant Superintendent for Finance and Operations Wellesley Public Schools 40 Kingsbury Street Wellesley, MA 02481 Dear Ms. Mahr: On October 6, 2021, I received your petition on behalf of the Wellesley Public Schools (School) seeking permission to charge more than the statutory maximum hourly rate and charge for segregation/redaction time for information not required to be redacted by law. G. L. c. 66, § 10(c). As required by law, it is my understanding that the School furnished a copy of this petition to the requestor, John Muckle. In an email dated September 24, 2021, Mr. Muckle requested the following records: • The contract and any invoices from the vendor AppGeo with Wellesley Public schools for services rendered in 2021; • Email or text messages since May 1, 2021 to or from [named person] referencing Upham enrollment and/or feasibility of swing space plans for the Hunnewell School Project; • Email and/or text messages since June 15 to or from [named] School Committee members referencing Upham enrollment and/or feasibility of swing space plans for the Hunnewell School Project; • Emails from [named persons] containing AppGeo or related to their studies since May 1, 2021. Petition to Assess Fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the 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

Cynthia D. Mahr SPR21/2603 Page 2 October 14, 2021 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. 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. 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 October 6, 2021 petition, the School states that, “t]he majority of the records requested are in the form of emails. Specifically, the School … estimates that there are 715 emails responsive to the request. It is likely that the School … may withhold many of these

Cynthia D. Mahr SPR21/2603 Page 3 October 14, 2021 emails, in full or in part, because they are subject to one or more of the exemptions to the Public Records Law. Portions of the requested records may be protected under Exemption (a), which applies to records that are specifically or by necessary implication exempted from disclosure by statute … [pursuant to] Family Education Rights Privacy Act (“FERPA”), 20 U.S.C § 1232g and 34 C.F.R. Part 99. Mr. Muckle has requested records from the School … including information pertaining to the AppGeo vendor and contract. The School … provided AppGeo with a large number of student data elements—including, but not limited to names, addresses, birthdate, IEP status, and enrollment in either the Skills Program (Autism Program) or the Therapeutic Learning Center. These elements are tied directly to identifiable students. The School … must therefore review each record to determine if they can be released or must instead be withheld or redacted pursuant to FERPA.” The School further opined, “[t]here are 715 potentially responsive records. 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, the School … only seeks permission to charge $43.86 per hour, which is the hourly rate of … the Administrative Assistant to the Assistant Superintendent of Finance and Operations.” The School also asserted in part that the records need to be reviewed to determine if information is protected under Exemption (c) and attorney-client privilege. The School explained, “[t]he records indicate whether a particular student has an IEP for a medical/mental health diagnosis and/or is enrolled in specific School Department-programming for a particular diagnosis -- such as the Skills Program for Autism or the Therapeutic Learning Center.” The School opined, “[t]he essential fact here is not that these exemptions apply, but rather, that each of these records must be reviewed …” In its petition, the School states the following concerning its request to charge a fee in excess of $25.00 per hour: “In this case, the Assistant Superintendent for Finance and Operations is the lowest paid employee with the necessary skill to determine whether the Exemption (c) and attorney-client privilege requires certain portions of the records Mr. Muckle seeks to be redacted.” Although Ms. Mahr’s hourly rate is $87.91 per hour, the School seeks permission to charge $43.86 per hour, which is the hourly rate for the Administrative Assistant to the Assistant Superintendent of Finance and Operations. I find the School has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). I find the School may assess a fee limited to $43.86 per --- hour for segregation and redaction. Given that the redactions are pursuant Exemption (a) and the attorney-client privilege, which are redactions are allowed by law, it is not necessary to opine on the request to charge for segregation and redaction.

Cynthia D. Mahr SPR21/2603 Page 4 October 14, 2021 Conclusion Please note, Mr. Muckle 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: John Muckle