David Brody v. South Hadley, Town of - Public Schools (SPR 20221246)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2022 SPR22/1246 Mark McLaughlin Acting Superintendent South Hadley Public Schools 116 Main Street South Hadley, MA 01075 Dear Superintendent McLaughlin: I have received your petition on behalf of South Hadley Public Schools (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). As required by law, it is my understanding that the School furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). In a letter dated May 24, 2022, David I. Brody requested: 1. Any and all documents by and between members of the South Hadley School Committee concerning [an identified person] including without limitation, documents concerning, regarding, reflecting, or evincing communications (including for example and without limitation, emails, letters, text messages, voicemails, call logs, etc.) with or about [said person]. 2. Any and all documents concerning, regarding, reflecting, or evincing communications (including for example and without limitation, emails, letters, text messages, voicemails, call logs, etc.) between any member of the South Hadley School Committee (including the School Committee acting collectively) and each of the following individuals. 3. Any and all contracts executed by the School Committee and any Superintendent of the South Hadley Public Schools from 1973 to the present. 4. Any and all documents concerning, regarding, reflecting, or evincing contract negotiations between the School Committee and any Superintendent of the South Hadley Public Schools from 1973 to the present. 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 McLaughlin SPR22/1246 Page 2 June 1, 2022 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 May 27, 2022 petition, the School states the following: The [School] has started to collect records for responding to this request, and in just reviewing three specific [School] email addresses, has already found 10,000 emails that need to be reviewed for responsiveness and potential redactions. This number does not include the attachments to those emails and is not even the complete amount of documentation that will be collected in order to respond to this particular request. This number does not include the attachments to those emails and is not even the complete amount of documentation that will be collected in order to respond to this particular request…As such, [the School is] requesting three months additional time to comply with this response. 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.

Superintendent McLaughlin SPR22/1246 Page 3 June 1, 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 an agency’s petition to allow the agency 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 agency 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) 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).

Superintendent McLaughlin SPR22/1246 Page 4 June 1, 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). Current Petition In its May 27th petition, the School states the following: Redactions will be necessary for information such as [School] account numbers and/or any cell phone numbers that may have been exchanged in any emails, and/or any student information that may be contained in any of the records and any documents protected by attorney/client privilege. In light of 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). Conclusion 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 as described above, the School may assess a charge for the segregation and redaction of such exempt material. Please note, Mr. Brody 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: David I. Brody