Marion J. King v. Tewksbury, Town of - Public Schools (SPR 20220622)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 23, 2022 SPR22/0622 Brenda Regan Interim Superintendent of Schools Tewksbury Public Schools 139 Pleasant Street Tewksbury, MA 01876 Dear Superintendent Regan: I have received the petition of Marion King appealing the response of the Tewksbury Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 27, 2022, Ms. King requested: [1] all data, written or electronic, indicating all contacts between all representatives of the district and all employees at MA DESE between January 16, 2022 and the date of your response, including but not limited to emails, calendar entries, file notes, and electronic telephone records[, and;] [2] for January 16, 2022 through the date of your response, all communication records, between TPS employees or their agents, regardless of their form, that reference the topics of public records requests, DESE, PRS, or my name. Previous Appeal The records sought by Ms. King were the subject of a previous appeal. See SPR22/0366 Supervisor of Records Determination (February 28, 2022). There, the School indicated that it would provide a supplemental response. The School provided their supplemental response on March 14, 2022. Unsatisfied with the School’s supplemental response, Ms. King petitioned this office and this appeal, SPR22/0622, was opened as a result. 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 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

Superintendent Regan SPR22/0622 Page 2 March 23, 2022 ($.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). The School’s February 10th and March 14th Responses In its initial fee estimate on February 10, 2022, the School provided responsive records to Ms. King’s second request but also stated: Please be advised that your [first] request…has generated 12,194 emails. These emails would need to be reviewed prior to production to ensure that none contain information exempt from disclosure under applicable laws. Based on a conservative estimate of reading one email per minute, the district estimates the review of 12,194 emails will take approximately 203 hours…Accordingly, the fee estimate for your request is $5,025.00. This figure represents 201 hours of search, segregation and redaction time at twenty five dollars per hour. In its supplemental response on March 14, 2022, the School stated: In response to Ms. King’s request…the District conducted a computer generated search of its database to locate responsive records. This initial search located 12,194 potentially responsive emails. After searching for each potentially responsive document, each email would to need to be reviewed prior to production to ensure that none contain information exempt from disclosure under applicable laws … The District asserts that exemption (a) under G.L. c. 4 §7(26) may apply to the above referenced emails because the District is prohibited from disclosing personally identifiable information (PII) regarding students to third parties under The Family Educational Rights and Privacy Act (“FERPA”). 20 U.S.C. §1232g (a)(4)(A); 34 C.F.R. 99.3…Based upon the definition above, any information

Superintendent Regan SPR22/0622 Page 3 March 23, 2022 contained in the emails that is linked or linkable to a specific student constitutes as PII and may not be disclosed to a third party, and would therefore need to be redacted … The District asserts exemption (c) under G.L. c. 4, §7(26) may also apply to the above referenced emails because the emails may contain personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy … In order to determine whether the emails contain such information, an actual individual would need to carefully read each email and all attachments. This task cannot be completed by a computer. The individual would then need to segregate and redact information exempt from disclosure under the aforementioned laws … Based on a conservative estimate of reading and redacting one email per minute, the district estimates the review and redaction of 12,194 emails will take approximately 203 hours. Tewksbury may charge twenty-five dollars ($25.00) per hour for search, segregation and redaction time after the first two hours. Accordingly, the fee estimate for your request is $5,025.00. Current Appeal In her current appeal, Ms. King stated, “I continue to be unsatisfied with the response from Tewksbury Public Schools and still believe the response of a fee of over $5,000 to be intended to deter me from seeking public records. Please issue a determination on the appropriateness of the requested fees.” In light of the School’s supplemental response, I find that given the scope of the request the School has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. -Se-e G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). I encourage the parties to further communicate in order to facilitate producing records affordably and efficiently. 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).

Superintendent Regan SPR22/0622 Page 4 March 23, 2022 Conclusion As set forth above, I find the School has met its burden in responding to Ms. King’s request at this time. Any revision to the request would result in the requirement to issue a revised estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Marion King