Christopher Oliver v. Acushnet, Town of - Public Schools (SPR 20221008)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 5, 2022 SPR22/1008 Kelly Benevides Executive Administrative Assistant Acushnet Public Schools 130 Main Street Acushnet, MA 02743 Dear Kelly Benevides: On April 29, 2022, this office received your petition on behalf of the Acushnet Public Schools (School) requesting an extension of time to respond to the request as well as permission to charge for time spent segregating or redacting responsive records under G. L. c. 66, § 10 (d)(iv). As required by law, the School furnished a copy of its petition to the requestor, Christopher Oliver. G. L. c. 66, § 10(c). On April 26, 2022, Mr. Oliver states, “[f]or the time period August 1, 2021 through April 8, 2022, please provide the following: 1. All emails to and from [the following four identified individuals] with keyword search ‘Oliver’ 2. Electronic Text Messaging Correspondence: Any and all text messages relating to official business of the Acushnet Public Schools conducted on their personal cell phones.” Petition 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; 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

Kelly Benevides SPR22/1008 Page 2 May 5, 2022 (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). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. - The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must 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 April 29th petition, the School states the following: This 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 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 during normal business hours of operation without an extension in light of the size of the request. Pursuant to M.G.L. c. 66, section 10( c ), the [School] requests an additional 40 business days beyond the time specified under the statute (25 business days) - for a total of 65 business days from the date of receipt payment for the work, to respond to the portion of the request that seeks legal invoices. 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 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). Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66,

Kelly Benevides SPR22/1008 Page 3 May 5, 2022 § 10(d)(iv). 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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) 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 Petition In its April 29th petition, the School states the following:

Kelly Benevides SPR22/1008 Page 4 May 5, 2022 First, the request seeks all electronic communication. Those records likely contain the content of discussions between the [School] and its attorneys, for the purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney-client privilege… Accordingly, the records will need to be reviewed to determine if they contain information protected by the attorney-client privilege and then any necessary redactions will need to be made. Second, in many cases the records are from parents seeking information of their children and additional records. In those cases, a response may provide both information covered under student records regulations and public records information. As a result, the records are likely to contain personally identifying information of public school students. In Champa v. Weston Public Schools, 473 Mass. 86 (2015), the Supreme Judicial Court held that a settlement agreement between a public school district and the parents of a child who required special education services at an out-of-district private institution was 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,” MGL c. 4, § 7(26)(a)… Like the agreement at issue in Champa, the requests, emails and responses will contain personally identifying information of public school students who enjoy mandated confidentiality; indeed, such documents, if released, would reveal the identities, disabilities and information on their educational programming. As a result, these records should be deemed exempt from Public Records Law disclosure under Exemption (a) because, as supported by Champa, state and federal regulations compel the [School] to protect educational records from disclosure. Specifically, they are protected by the Federal Education Rights Privacy Act, Massachusetts General Law, Chapter 71, Section 34A to 34H, and 603 CMR 23.00 et. seq. At the very least, the records will need to be reviewed to determine if they contain any student information, and then any necessary redactions will need to be made. Finally, these emails and responses 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…In accordance with the exemption, the [School] needs to redact personal email addresses and cell phone numbers from these requests… The [School] estimates that it will take approximately 1 minute per page to complete its segregation, and potential redaction of the records sought in Mr. Oliver’s request. As a result, the [School] estimates a total of 317 hours for segregation and redaction. 1 hour for search plus 317 hours for segregation and redaction is a total of 318 hours. 318 hours multiplied by $25 per hour yields a fee estimate of $7,950.

Kelly Benevides SPR22/1008 Page 5 May 5, 2022 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). Conclusion In light of the School’s petition, 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, Mr. Oliver 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: Christopher Oliver