Marion J. King v. Nashoba Regional School District (SPR 20220216)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 11, 2022 SPR22/0216 Patricia Marone Records Access Officer Nashoba Regional School District 50 Mechanic Street Bolton, MA 01740 Dear Ms. Marone: I have received the petition of Marion J. King appealing the response of the Nashoba Regional School District (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 15, 2022, Ms. King requested “Massachusetts Department of Elementary and Secondary Education Letter(s) of Finding for [three complaints] redacted of any confidential information.” The School responded on January 31, 2022, providing a fee estimate. Objecting to the fees, Ms. King appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive 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

Patricia Marone SPR22/0216 Page 2 February 11, 2022 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) 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 Appeal In her appeal petition, Ms. King contends that “the responsive records are most likely not more than 40 pages in total and not the 600 pages estimated by the District.” She further argues that she “believe[s] the District’s estimate of 600 pages and the estimated fee of $200 was meant to deter or prevent this requester from the legal pursuit of the named public records.” Additionaly, she states that “the District also did not offer, as required, to discuss narrowing the scope of the request.” The School’s January 31st Fee Estimate In its January 31, 2022 fee estimate, the School provides the following information: The [School] is in possession of approximately 600 pages of records that are responsive to [Ms. King’s] request. Those records consist of student information. That information is protected by the Family eeducation Rights Privacy Act (“FERPA”) and Massachusetts student record regulations and statutes, specifically, 603 C.M.R. 23.00 and Massachusetts General Law, Chapter 71, Sections 34D to 34H. Pursuant to the Public Records Law, records “specifically or by necessary implication exempted from disclosure by statute,” are not subject to disclosure. M.G.L. c. 4, § 7(26)(a). FERPA and the Massachusetts student records regulations are statutes that prohibit disclosure of records.

Patricia Marone SPR22/0216 Page 3 February 11, 2022 [The School] estimate[s] the time of redacting those records will be 10 hours. By law, the [School] can charge $25 per hour. The first two hours will be no charge, determined by [the] local population. The total cost for redaction will be $200.00. Where the School has indicated that it is charging for redactions required by FERPA, and has indicated that it will take approximately one minute per page to redact the records, I find that the School has met its burden in explaining that the redactions are required by law, and in explaining the amount of time required. However, in its response, the School has not stated whether the hourly rate being used is equal to or less than that of the lowest paid employee with the necessary skills to perform the tasks. The School must clarify this. Additionally, this office encourages the School and Ms. King to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a 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 municipality to produce the records sought more efficiently and affordably). Conclusion Accordingly, the School is ordered to provide Ms. King with a response, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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, Rebecca S. Murray Supervisor of Records cc: Marion J. King