Family Freedom Endeavor v. Methuen Public Schools (SPR 20213093)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 29, 2021 SPR21/3093 Brandi L. Kwong, Ed.D Suerintendent Records Access Officer Methuen Public Schools 10 Ditson Place Methuen, MA 01844 Dear Dr. Kwong: I have received your petition on behalf of the Methuen Public Schools (School) requesting an extension of time to produce records, a waiver of statutory limits on fees that may be assessed in responding to the request 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); see also 950 C.M.R. 32.06(4). As required by law, the School furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On November 8, 2021, The Family Freedom Endeavor, Inc. requested three categories of email correspondence between numerous individuals from March 1, 2020 to October 28, 2021 that contain a number of specified key words. Petitions 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; 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

Brandi L. Kwong, Ed.D SPR21/3093 Page 2 November 29, 2021 (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). 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). Extension of Time to Produce Responsive Records In its November 23, 2021 petition, the School states the following: The [School] requests that it be given additional time to respond to the request given the large number of responsive records and the amount of work that the [School] will need to perform to produce the records. . . . This instant request will take a significant amount of time to respond to give the volume of records requested and the need for review and redaction of the responsive records. As a result, the [School] hereby petitions for an extension of time to respond. Pursuant to M.G.L. c. 66, section 10(c), the [School] 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. I find in light of the need to collect and segregate the request, as well as the the capacity of the School to produce the request without an extension, the School has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The School is granted an extension of 30 business days. Please note the time may begin to run once the School receives payment. G. L. c. 66, § 10(c). 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).

Brandi L. Kwong, Ed.D SPR21/3093 Page 3 November 29, 2021 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. 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 ($.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 petition, the School states that the “emails sought by the requester need to be reviewed, and potentially redacted, for several reasons. . .

Brandi L. Kwong, Ed.D SPR21/3093 Page 4 November 29, 2021 First, the request seeks all electronic communications between the Superintendent and the School Committee. Those records may contain the content of discussions between the [School] and its attorneys, for purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney-client privilege. . . . Accordingly, the records will need to be reviewed to determine if they contain information protected by the attorney-client privilege and then any necessary redactions will need to be made. Second, electronic communications between the Superintendent and the School Committee may also contain information covered under student records regulations and public records information, specifically, personally identifying information of public school students. Information identifying public school students is not subject to disclosure under the Public Records Law based on Exemption (a). . . . Specifically, student information is protected by the Federal Education Rights Privacy Act, Massachusetts General Law, Chapter 71, Section 34A to 34H, and 603 CMR 23.00 et. seq. As a result, the records will need to be reviewed to determine if they contain any student information, and then any necessary redactions will need to be made. Additionally, the emails between the Superintendent and the School Committee may require redactions in accordance with the exemption set forth at G. L. c. 4, § 7(26)(c). . . . Correspondence between the Superintendent and the School Committee may contain confidential personal information or other information protected by the privacy esemption contained in Exemption (c). In accordance with the exemption, the [School] will need to review and redact any information contained within these emails which is not subject to disclosure. Lastly, the emails between the Superintendent and the School Committee may require redactions in accordance with the Exemption set forth at G. L. c. 4, § 7(26)(d). . . . Correspondence between the Superintendent and the School Committee may cntain information concerning policy positions currently being developed by the [School]. As a result, the [School] will need to review and redact any information contained within these emails which is not subject to disclosure pursuant to Exemption (d). Based on the School’s petition, 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 redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the School may assess a fee for the segregation and redaction of such exempt material. Fee in Excess of $25.00 per hour In its petition, the School states the following concerning its request to charge a fee in excess of $25.00 per hour:

Brandi L. Kwong, Ed.D SPR21/3093 Page 5 November 29, 2021 In this case, the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce the record requested is the District’s Director of Instructional Technology. The Director of Instructional Technology is the lowest paid qualified employee, because he is designated as a confidential employee for the purpose of accessing student information, a requirement under student records laws, and has the requisite technological skill to search for the responsive records. The Director of Instructional Technology’s hourly rate is $65 per hour. As a result, the District requests that the Supervisor allow it to charge $65 per hour to complete its search, segregation, and redaction of the responsive records. 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 $65.00 per hour to search for, compile, segregate, redact and reproduce the resonsive records. Conclusion Accordingly, I find the School has established good cause for a time extension of 30 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the School may assess a fee for segregation and redaction. Further, as described above, the School may assess a fee limited to $65.00 per hour. Please note, The Family Freedom Endeavor, Inc. 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: The Family Freedom Endeavor, Inc.