Jill Dickinson v. Frontier Regional & Union 38 School District (SPR 20220047)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 25, 2022 SPR22/0047 Darius Modesto Superintendent of Schools Frontier Regional and Union #38 School District 113 North Main Street South Deerfield, MA 01373 Dear Superintendent Modesto: I have received the petition of Jill Dickinson appealing the response of the Frontier Regional and Union #38 School District (District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 21, 2021, Ms. Dickinson requested documents for various periods of time from the District. Previous appeal The request was the subject of a previous appeal. See SPR21/2936 Determination of the Supervisor of Records (November 17, 2021). The District responded on November 30, 2021. Unsatisfied with the District’s response, Ms. Dickinson petitioned this office and this appeal, SPR22/0047, was opened as a result. 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. 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

Darius Modesto SPR22/0047 Page 2 January 25, 2022 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). Waiver of fees In her petition for appeal, Ms. Dickinson requested that the fee be waived. Please be advised the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request. Under the Public Records Law, the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. See G. L. c. 66, § 10(d)(v); see also 950 C.M.R. 32.07(2)(k). The District’s November 30th Fee Estimate In its November 30th response, the District responded to each request individually as follows: Request 1, 2, 3 The District advised that there is no charge. Request 4 The District advised that the original estimate was 4+ hours and is now 6 hours. Request 5 The District advised that the original estimate was 5 hours and remains the same. Request 6 The District advised that the original estimate was 1+ hours and is now 2+ hours due to segregation and redaction of emails.

Darius Modesto SPR22/0047 Page 3 January 25, 2022 Request 7, Request 9 and Request 11 The District advised no charge because no records exist. Request 8 The District advised that the original estimate was 1.5 hours and is now 2 hours due to segregation and redaction of emails. Request 10 The District advised that the original estimate was 1 hour or less and remains the same. Request 12 The District advised that the original estimate was 1 hour and remains the same. Request 13 The District advised that the original estimate was 1 hour and is now 3 hours due to segregation and redaction of emails. Request 14 The District advised that the original estimate was 1 hour and is now 4+ hours due to segregation and redaction of emails. Request 15 and Request 16 The District advised that the original estimate was 1 hour or less and remains the same. Request 17 The District advised that the original estimate was 1 hour and is now 2+ hours due to segregation and redaction of emails. Request 18 and Request 19 The District advised that the original estimate was 1 hour and is now 2+ hours due to segregation and redaction of emails. The District gave a revised estimate of 37.50 hours at $25.00 per hour plus 100 copies for a total of $767.50. The District advised that the request “could find hundreds to possibly thousands of electronic files …” The District asserted that, “[t]he 19 separate records request,

Darius Modesto SPR22/0047 Page 4 January 25, 2022 especially those involving vague requests … requires exhaustive amounts of personnel time … The District encourage the requestor to modify their request … to be more concise regarding the information needed which could result in a lower cost.” Although the District has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 37.50 hours of employee time, it is unclear how the District requires this many hours to produce responsive records. It is not clear from the District's estimate how many hours are allocated to search, and how many hours are allocated for segregation, and redaction of the records. Further, although the District explained that redactions are necessary under the Family Educational Rights and Privacy Act (FERPA), as it operates through Exemption (a), it is unclear whether the District is charging for segregation and redaction that is not required by law. See G. L. c. 66, § l0(d)(iii) (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)). In addition, it is not clear what tasks are involved to prepare responsive records for production. As such, the District must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reasons discussed above, I find the District must revise its fee estimate. I encourage Ms. Dickinson and the District to communicate further in order to facilitate producing records efficiently and affordably. Ms. Dickinson may wish to include applicable time periods or additional factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The District must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the District is ordered to provide Ms. Dickinson with a revised fee estimate, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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.

Darius Modesto SPR22/0047 Page 5 January 25, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jill Dickinson