Jaclyn Guarino v. Dedham, Town of - Public Schools (SPR 20213058)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 19, 2021 SPR21/3058 Amy Hicks Executive Assistant to the Superintendent Dedham Public Schools 100 Whiting Avenue Dedham, MA 02026 Dear Ms. Hicks: I have received your petition on behalf of the Dedham Public Schools (School) 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)(d)(iv). As required by law, it is my understanding that the School furnished a copy of this petition to the requestor, Jaclyn Guarino. Id. In a letter dated November 3, 2021, Ms. Guarino requested various records concerning School staff. 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

Amy Hicks SPR21/3058 Page 2 November 19, 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) must 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). Petition 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 an agency’s petition to allow the agency 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 agency 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 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

Amy Hicks SPR21/3058 Page 3 November 19, 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 petition dated November 18, 2021, the School “…requests that you allow it to charge to segregate and redact under the Public Records Law and grant it additional time to produce the records sought in the request.” The School explains, “[t]he records sought in the request need be reviewed, and potentially redacted, for several reasons as follows. The first section of the requests seeks: All email correspondence between [two identified individuals] from Jan 1, 2020 to Nov 3, 2021 that contain the following key words: ‘covid,’ ‘mandate,’ ‘federal funds,’ ‘covid injection protocols’, ‘testing,’ ‘mask,’ ‘critical race theory,’ ‘social emotional learning,’ ‘sex education,’ ‘PCR testing’, ‘diversity, inclusion, equity, justice’, ‘social justice.’” The School explains it “…has performed an initial search of its email system and has identified 304 emails that may be responsive to [the] request. Given the individuals involved in the request...and the search terms that are referenced, the responsive emails may contain information that is subject to exemption and/or redaction under the Public Records Law. Specifically, the following exemptions may apply: 1. G. L. c. 4, § 7(26)(a) – the Statutory Exemption – specifically Student Records: G. L. c. 71, § 34D, 34E and the Family Educational Rights and Privacy Act (FERPA) 34 CFR PART §99; and 2. G. L. c. 4, § 7(26)(c) – the Privacy Exemption - specifically, personnel and medical files or information or materials or data relating to a specifically named individual (i.e. employees, students or parents), the disclosure of which may constitute an unwarranted invasion of personal privacy.”

Amy Hicks SPR21/3058 Page 4 November 19, 2021 The School states, “[t]he second section of the request seeks: All email correspondence between all school committee members and the superintendent…from Jan 1, 2020 to October 28, 2021 that contain the following key words: ‘mandates,’ ‘mask,’ ‘vaccine,’ ‘covid 19 vaccines’ ‘federal funds use’ ‘in school vaccine center’, ‘critical race theory,’ ‘social emotional learning,’ ‘sex education,’ ‘PCR testing’, ‘identity’, ‘gender identity.’” The School posits that it “…has performed an initial search of its email system and has identified 3,408 emails that may be responsive to the request. Given the individuals involved in the request and the search terms that are referenced, the responsive emails may contain information that is subject to exemption and/or redaction under the Public Records Law. Specifically, the following exemptions may apply: 1. G. L. c. 4, § 7(26)(a) – the Statutory Exemption – specifically Student Records: G. L. c. 71, § 34D, 34E and the Family Educational Rights and Privacy Act (FERPA) 34 CFR PART §99; and 2. G. L. c. 4, § 7(26)(c) – the Privacy Exemption -specifically, personnel and medical files or information or materials or data relating to a specifically named individual (i.e., employees, students or parents), the disclosure of which may constitute an unwarranted invasion of personal privacy.” With respect to the third category of records, the School notes it “…is not in possession of any records that are responsive.” Further, the School contends that it will “…need to review the records to ensure that student records and private or personnel records are not inadvertently disclosed. [The School] estimates that it will take approximately 1 minute, on average, to review each of the records to determine if any of the above-referenced exemptions or any other exemption applies.” The School also “…requests an additional 30 business days beyond the time specified under the statute (25 business days) – for a total of 55 business days from the date of receipt payment for the work, to respond to the portion of the request that seeks legal invoices… given the large number of responsive records and the amount of work that [the School] will need to perform to produce the records.” Conclusion It is my determination that given the nature of the requested records and the explanation in its petition, the School is permitted to charge for time spent segregating and redacting the requested records.

Amy Hicks SPR21/3058 Page 5 November 19, 2021 Further, in light of the above, I find the School has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the School an extension of 30 business days to furnish copies of records responsive to Ms. Guarino’s request. See G. L. c. 66, § 10(c). Any fee estimate by the School must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note the Ms. Guarino 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), l0A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jaclyn Guarino