Daryl McKay v. Nashoba Regional School District (SPR 20220344)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 14, 2022 SPR22/0344 Patricia Marone Records Access Officer Nashoba Regional School District 50 Mechanic Street Bolton, MA 01740 Dear Ms. Marone: I have received your petition on behalf of the Nashoba Regional School District (School/District) requesting permission to charge for time spent segregating or redacting requested 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. Id. On January 28, 2021, the School received a request from Daryl and Julie McKay requesting a “copy of all education records in the School District's possession that pertain to [identified individual].” The McKay Family explained their request should include the following: progress reports, report cards, deficiency notices, correspondence to and from parents and others, awards standardized test results, staff memos, interoffice memos, emails, letters, notes and comments of any kind, including notes of telephone calls, multi-disciplinary meetings and observations of child, attendance records, including notices of truancy, suspension and expulsion, requests for and notices of Section 504 and IEP meetings, medical and school health records, notes of psychologists, speech and language therapists, resource specialists and other personnel who have provided services to, evaluated or otherwise been involved in or responsible for the provision of a free appropriate education, class schedules, referrals for evaluations, evaluations and assessments, third-party reports or writings of any kind, notices of placement and statements of rights that were provided to parents, including notes from multi-disciplinary team meetings and observations of the child, all IEPs and any documents related to the IEPs, videos and audiotapes and digital communications (e.g. emails/text messages) that directly relate to the student. 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, RAO SPR22/0344 Page 2 February 14, 2022 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 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).

Patricia Marone, RAO SPR22/0344 Page 3 February 14, 2022 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 The School states that it is necessary to perform redactions on the responsive records. In a February 11, 2022 email, the School explains that “[t]he District is in possession of approximately 3,004 emails that are responsive to [the McKay family’s] request.” The School asserts the information is necessary to be redacted pursuant to Exemptions (a) and (c) of the Public Records Law as follows: Exemption (a) • Information identifying public school students is not subject to disclosure under the Public Records Law based upon Exemption (a) which protects from disclosure records that are … specifically or by necessary implication exempted from disclosure by statute. G.L. c. 4, § 7(26)(a); Champa v. Weston Public Schools, 473 Mass. 86 (2015). 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 emails will need to be reviewed so that necessary redactions can be made… Exemption (c) • Additionally, the records may require redactions in accordance with the exemption set forth at G.L. c. 4, § 7(26)(c). Exemption (c), commonly referred to as the privacy exemption, applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy . . . . G. L. c. 4, § 7(26)(c). In this case, the emails contain private information concerning students that must be redacted. The School stated it “requests that the Supervisor allow the District to charge $25 per hour to complete the segregation and redactions of the emails referenced above in accordance with Exemption (c). Any redactions required by the Federal Education Rights Privacy Act, Massachusetts General Law, Chapter 71, Section 34A to 34H, and 603 CMR 23.00 et. seq. are required by law and therefore the District is not required to seek authorization to charge for such redactions.” Conclusion In light of its 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

Patricia Marone, RAO SPR22/0344 Page 4 February 14, 2022 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 charge for the segregation and redaction of such exempt material. When preparing a fee estimate for the provision of the requested records the School is advised to provide a detailed explanation to the requestor detailing why this amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The School must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The School is to provide a response to the requestor within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). The requestor may appeal the School’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note the requestor 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: Daryl and Julie McKay