Renee Bartlett v. Berkshire Arts and Technology Charter Public School (SPR 20220320)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 15, 2022 SPR22/0320 Julia Marko Director of Finance and Operations Berkshire Arts & Technology Charter Public School 1 Commercial Street PO Box 267 Adams, MA 01220 Dear Ms. Marko: I have received your petition on behalf of the Berkshire Arts & Technology Charter Public School (School) requesting 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); 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 January 26, 2022, Ms. Bartlett requested “a copy of the following records plus any additional records that may be related to anything noted in this letter: • Records of [identified individual’s] Religious exempt form from 2018 • Documents, Notes. Records & Emails Regarding any and all information regarding my child [identified individual] in PRS, OCR, DCF and all related matters • Records, Documentation, Notes of [identified individual] medical history • Copy of your official Certificate Insurance Policy; Self Insured Plan as Defined By Statutes • State officers and employees blanket bond; amount; approval • Approval Of Bond; Filing • Bonds Premiums As Public Charge • Recording of bond; copies • Form of official bonds • Justification Of Sureties; Officers Ineligible As Sureties • Limitation Of Liability By Sureties • Extent of liability • Beneficiaries of bond 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

Julia Marko SPR22/0320 Page 2 February 15, 2022 • Successive recoveries • Defects In Form, Approval Or Filing Of Bond • Additional bond; failure to file • Additional Bond; Terms • Liability On Original And Additional Bonds • Judgment On Original And Additional Bonds; Contribution Of Sureties • Discharge Of Sureties • Bonds Of Persons Appointed To Fill Vacancies • Withdrawal Of Surety; Effect On Remaining Sureties • Supplemental Bond Upon Withdrawal Of Surety; Exception • Effect Of Withdrawal On Liability Of Surety • Affidavit of plaintiff in action to recover on bond that defendant owns real property; notice to recorder • Recording Notice Of Ownership Of Real Property; Lien Of Judgment.” 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; (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 February 9, 2022 petition, the School requested “an additional thirty (30) business

Julia Marko SPR22/0320 Page 3 February 15, 2022 days to produce the requested records.” The School states the following: Ms. Bartlett has made a voluminous request within a short time period. This instant request will take a significant amount of time to respond to given the volume of records requested. As a result, it is not possible to respond within ten (10) business days. Therefore, the School hereby petitions for an extension of time to respond given that the scope of redaction required to prevent unlawful disclosure is significant. The School will be unable to produce the records within ten (10) business days without an extension in light of the size of the above request and its broad scope.… Pursuant to M.G.L. c. 66, section 10(c), the School requests an additional thirty (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 requests. I find in light of the need to collect and segregate the request, as well as the capacity of the School to produce the request without an extension, the efforts already undertaken by the School to provide responsive records, and that the request is part of a series of requests from the same requestor, 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). 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

Julia Marko SPR22/0320 Page 4 February 15, 2022 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 February 9, 2022 petition, the School requested it be allowed “to charge a fee for redactions under Exemptions (C) and (D).” The School states: Exemption (c) • email records responsive to Ms. Bartlett’s request are likely to contain information which is exempt from production pursuant to M.G.L. c. 4, § 7, ¶ 26(c). … The emails requested in Request Item #2 are likely to include information regarding other students’ disabilities and other medical information as well as additional private information pertaining to students and staff. The records are also likely to contain personnel information relating to employees of the School, which are exempt from disclosure under Exemption (c). As such, the School will need to review each record, determine whether the record consists of the information described above, and redact accordingly…

Julia Marko SPR22/0320 Page 5 February 15, 2022 Exemption (d) • Furthermore, the email records responsive to Request Item #2 are likely to contain information pertaining to the School’s interoffice deliberative processes which is exempt from disclosure pursuant to Exemption (d) of the Public Records Law.. . . . to the extent that Ms. Bartlett’s request includes records regarding inter-office memoranda relating to policy currently being developed by the School, or other such deliberative materials, the School will need to redact or withhold accordingly to comply with this section. 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. 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. Please note, Ms. Bartlett 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: Renee Bartlett