Commonwealth Transparency v. Methuen Public Schools (SPR 20212886)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 16, 2021 SPR21/2886 Brandi L. Kwong, Ed.D. Superintendent of Schools Methuen Public Schools 10 Ditson Place Methuen, MA 01844 Dear Dr. Kwong: I have received the petition of Commonwealth Transparency appealing the response of the Methuen Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Commonwealth Transparency requested: For the time period January 1, 2016 through the date you respond with the responsive documents, please provide the following: 1. Any and all public records requests seeking public records of your school(s), and/or district(s); 2. All metadata from the requests in #1 above including all contact information of the requestor, including but not limited to emails and text messages; 3. All electronic communications regarding #1 above including but not limited to emails and text messages; and 4. All responses, appeals, fee requests and responsive records resulting from the requests in #1 above. In its October 27, 2021 response, the School indicated, “[t]hough the request was October 12, 2021, the [School] did not receive the request until October 18, 2021, as the email was marked as scam by the [School’s] email system. The [School] sent [Commonwealth Transparency] an email on October 26, 2021 indicating the same and stating that it would respond to the request on October 27, 2021. As of the time of this letter, [Commonwealth Transparency has] not responded to the [School’s] October 26th email.” As a result of the School’s October 27th response, Commonwealth Transparency petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In its petition, Commonwealth Transparency objects to the fees for segregation and redaction of the records, 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. Brandi L. Kwong SPR21/2886 Page 2 November 16, 2021 and the fee for search time. In addition, Commonwealth Transparency objects to the School’s redaction of the records. Previous petition This request was the subject of an October 27, 2021 petition from the School. See SPR21/2840 Determination of the Supervisor (November 3, 2021). In my November 3rd determination, I granted the School an extension of 30 business days and permitted the School to assess a fee for the segregation and redaction of the requested records. Fee Estimates – 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). 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 October 27, 2021 Fee Estimate In its October 27th fee estimate, the School states that it “is in possession of approximately 100 pages of public records requests responsive to [the request #1]. With respect to [the requests #2 and #3], the [School] searched its email system for the words public records and/or FOIA. The [School’s] search generated twenty-nine (29) emails which may be responsive to [the request] and will need to review each email to ensure responsiveness. The [School] is not aware of any text messages responsive to your request. Lastly, the [School] is in possession of approximately one thousand one hundred seventy-five (1,175) pages of responses, appeals, fee requests and responsive records resulting from the requests. The [School] has no other responsive documents.”

Dr. Brandi L. Kwong SPR21/2886 Page 3 November 16, 2021 In its fee estimate, the School indicates, “…the [School] estimates that it will take approximately thirty (30) seconds per email to read the email and determinate whether it is responsive to the request. Furthermore, the [School] has already spent five (5) hours of time searching for the records. As a result, the [School] estimates a total of five (5) hours for search of the records.” The School also states, “[e]ach page of the records [Commonwealth Transparency] seek[s] must also be reviewed to determine if any exemptions or privileges apply.” The School explained, “[t]hose records likely contain the content of discussions between the [School] and its attorneys, for the purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney-client privilege.” In addition, the School states, “…in many cases the public records requests are from parents seeking records of their children and additional records. In those cases, a response may provide both information covered under student records regulations and public records information.” The School cites the Federal Education Rights Privacy Act (FERPA); G. L. c. 71, §§ 34A to 34H; 603 C.M.R. 23.00 et. seq. - -- and Exemption (a). The School may assess a fee for segregation and redaction of the attorney- client privilege material, and personally identifiable information of students under federal and state law. Where the School will also segregate and redact material under Exemption (c), such as personal email addresses and personal cell phone numbers, the School petitioned the Supervisor for approval to assess segregation and redaction under Exemption (c). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The School estimates that it will take approximately 1 minute per page to complete its segregation and possible redaction of the records sought in this request. The School estimates a total of twenty-one (21) hours for segregation and redaction. The School indicated the estimate is comprised of five (5) hours for search plus twenty- one (21) hours for segregation and redaction, for a total of twenty-six hours. The School will not charge the first two hours of time in accordance with 950 C.M.R. 32.07(2)(m)(1). Twenty-six (26) minus two (2) hours is a total of twenty-four (24) hours. Twenty-four hours multiplied by $25 per hour yields a fee estimate of $600.00. The School explained that the lowest paid employee with the necessary skill required for the tasks is a salaried employee with an hourly rate that exceeds $25. Commonwealth Transparency will only be charged $25 per hour to comply with the request. See G. L. c. 66, § 10(d)(iii). The School’s November 5, 2021 supplemental response In response to this appeal, the School provided a supplemental response on November 5th. In its November 5th letter, the School indicates that it timely responded to Commonwealth Transparency’s request that was received on October 18, 2021. In addition, the School explained, “[g]iven the broad language from [Commonwealth Transparency’s] request, the [School] had to conduct an email search to identify responsive records. The [School] describes in its response the

Dr. Brandi L. Kwong SPR21/2886 Page 4 November 16, 2021 terms that it thought reasonably addressed the request. Given that the search is over-inclusive, the only way to locate and identify records that will be responsive to the request is to read each email from the search individually. If [Commonwealth Transparency] has suggested search terms that it believes will narrow the request, the [School] is open to searching those terms.” The School further asserted, “in terms of the necessary redactions, [Commonwealth Transparency’s] allegation to this effect is unfounded. The [School] consults with legal counsel on responding to public records requests, so there will be communication between the [School] and legal counsel on individual requests. The [School] has not waived the privilege of these communications. Moreover, as outlined in the [School’s] response, parents may simultaneously request public records and student records or may provide student record information in their public records request…The student record portion of the response needs to be redacted in accordance with Exemption (a). Members of the public often use personal email addresses to make the requests and therefore, this information needs to be redacted.” Based on the School’s October 27th response, and the School’s November 5th supplemental response, I find that the School has met its burden in responding to the request. Further, as noted earlier in this determination, the School was previously approved to assess a fee for segregation and redaction, and was granted an extension of thirty (30) days to provide the records. Please note, the time may begin to run once the School receives payment. G. L. c. 66, § 10(c). Conclusion As set forth above, I find the School has met its burden in responding to Commonwealth Transparency’s request. Any revision to the request would result in the requirement to issue a revised estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Commonwealth Transparency