Commonwealth Transparency v. Wilmington, Town of - Public Schools (SPR 20212900)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 16, 2021 SPR21/2900 Lauren Celi Records Access Officer Wilmington Public Schools 161 Church Street Wilmington, MA 01887 Dear Ms. Celi: I have received the petition of Commonwealth Transparency appealing the response of the Wilmington 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. The School provided an October 26, 2021 response and fee estimate totaling $10,675.00. As a result of the fee estimate, Commonwealth Transparency petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In its November 1, 2021 petition, Commonwealth Transparency objects to the School’s amount of search time, and the segregation and redaction fee. Previous petition The request was the subject of a previous petition. See SPR21/2831 Determination of the Supervisor (November 2, 2021). In my November 2nd determination, I found that the School was 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

Lauren Celi SPR21/2900 Page 2 November 16, 2021 permitted to assess fees for segregation and redaction and was granted an extension of time of 30 business days to produce the requested records. Please note, the time may begin to run once the School receives payment. G. L. c. 66, § 10(c). 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 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 26, 2021 response/fee estimate The School’s October 26th response/fee estimate indicates: “The [School] is in possession of approximately 21,388 pages of public records requests responsive to [the requestor’s] Request #1 and Request #4. With respect to [the requestor’s] Requests #2 and Request #3], the [School] searched its email system for the words public records request and/or FOIA. The [School’s] search generated 6,928 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 [the] request.” The School is assessing a fee for search time for this request, and estimates, “…it will take approximately thirty (30) seconds per email to read the email and determine whether it is responsive to the request. Furthermore, the [School] has already spent 14.5 hours of time searching for the records. As a result, the [School] estimates a total of 72.5 hours for search of the records.”

Lauren Celi SPR21/2900 Page 3 November 16, 2021 With regard to the fees assessed for segregation and potential redaction of the records, the School explained that each page of the records must be reviewed to determine if any exemptions apply. The School estimates, “…approximately 1 minute per page to complete its segregation and potential redaction of the records sought in [the] request. As a result, the School estimates a total of 356.5 hours for segregation and redaction.” In this October 26th response, the School anticipates that segregation and redaction will be necessary under the attorney-client privilege, Federal Education Rights Privacy Act (FERPA); state law and regulations pertaining to personally identifiable information of students, and for personal email addresses and personal cell phone number under exemption (c). 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’s breakdown of the fees is as follows: 72.5 hours for search plus 356.5 hours for segregation and redaction is a total of 429 hours. In accordance with 950 C.M.R. 32.07(2)(m)(1), [Commonwealth Transparency] will not be charged for the first two (2) hours of those services. 429 hours minus two hours is a [total] of 427 hours. 427 hours multiplied by $25 per hour yields a fee estimate of $10,675. Regarding the hourly rate, the School explains, “[i]n this case, the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce the record requested is a salaried employee whose effective hourly rate exceeds $25 per hour. Notwithstanding that rate, a rate of $25 per hour will be used to calculate the following fee estimate.” G. L. c. 66, § 10(d)(iii). I understand that the School has suggested that Commonwealth Transparency could narrow or modify its request to reduce the estimated costs; however, to date, Commonwealth Transparency has not done so. Requestor’s objection to search, segregation and redaction In its November 1st petition for this appeal, Commonwealth Transparency objects to the amount of search time hours in the fee estimate, stating, “[t]he RAO has estimated 72.5 hours for an improper use of the term search, this is an incredulous number and is wholly unsupported by both the request itself and the response. What the RAO is declaring search is actually records organization, and the RAO cannot charge for records organization…” Commonwealth Transparency also asserts, “[i]n lieu of the RAO’s inability to electronically organize their records, [Commonwealth Transparency] hereby offers to receive the entire dataset of 28,316 documents and organize them ourselves.”

Lauren Celi SPR21/2900 Page 4 November 16, 2021 Finally, Commonwealth Transparency contends, “[t]he RAO has in fact indicated in their response, that they have approximately 28,316 responsive documents. [Commonwealth Transparency] is suspicious that [they have] that number of documents…” The School explained that it used two keyword terms to search for responsive records, however, it is unclear what other criteria it used to search and compile these records. The School must clarify the tasks involved in its search for responsive records. Conclusion Accordingly, the School is ordered to provide Commonwealth Transparency with a response to the request, 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. Sincerely, ,uJtJWa ·-- o .fJ A ~ ~ ~ - ~ Rebecca S. Murray Supervisor of Records cc: Commonwealth Transparency