Commonwealth Transparency v. Division of Administrative Law Appeals (SPR 20221354)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 21, 2022 SPR22/1353; SPR22/1354 Edward McGrath, Esq. Chief Administrative Magistrate Division of Administrative Law Appeals 1 Congress Street, 11th Floor Boston, MA 02114 Dear Chief McGrath: I have received the petitions of Commonwealth Transparency appealing the responses of the Division of Administrative Law Appeals (Division) to requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 26, 2022, Commonwealth Transparency requested: Any and all raw data in any format, including but not limited to, databases, spreadsheets, recordings, electronic mail systems, and or written documents, which support, detail, or provide substantive data published in the attached “published documents” for the following specific information: a.All documents substantiating the number of hearing requests filed by parents. b.All documents substantiating the number of hearing requests filed by schools/districts. c.All entries/notices of appearance(s) filed by attorneys representing schools/districts. d.All entries/notices of appearance(s) filed by attorneys representing parents… f. All documents substantiating any party refuses mediation… j.All documents substantiating “parents fully prevailed” k.All documents substantiating “school districts fully prevailed” l.All documents substantiating “mixed relief was granted.” That same day, Commonwealth Transparency also requested “any and all data contained in the case management system used by the BSEA for administration of Hearing 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

Edward McGrath, Esq. SPR22/1353 & SPR22/1354 Page 2 June 21, 2022 Previous Appeal With respect to Commonwealth Transparency’s first April 26th request, the records sought are the subject of a previous appeal. See SPR22/1148 and SPR22/1149 Determination of the Supervisor of Records (May 25, 2022). With respect to SPR22/1148, I ordered the Division to clarify whether exemptions to the Public Records Law permitted the Division to withhold responsive records for categories c, d, and f of the request; show whether additional responsive records exist for categories a and b; cite with specificity which exemptions applied to redactions made on responsive records that it provided, and; demonstrate how the Division’s initial response to the requestor satisfied the elements of G. L. c. 66, § 10(b). The Division provided a response pursuant to this order on June 9, 2022. Unsatisfied with the Division’s response, Commonwealth Transparency petitioned this office and SPR22/1353 was opened as a result. With respect to Commonwealth Transparency’s second April 26th request, the Division provided a response on May 6, 2022. Unsatisfied with the Division’s response, Commonwealth Transparency petitioned this office and SPR22/1354 was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Fee Estimates - Agencies If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. An agency 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).

Edward McGrath, Esq. SPR22/1353 & SPR22/1354 Page 3 June 21, 2022 Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies 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. 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)(ii); 950 C.M.R. 32.06(4). 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Division’s Responses Categories a and b of SPR22/1353; SPR22/1354 With respect to categories a and b of SPR22/1353, the Division stated, “there are no records other than the hearing requests that are responsive…” With respect to a different category of the request, the Division also stated a mediator within the Division enters “information in the case tracking system and that is the data the agency provided on May 16, 2022.” In its current appeal, Commonwealth Transparency stated, “the [Division] admits in [its] response to a ‘case tracking system.’ Said case tracking system is and contains the raw data sought in the records request…which by definition [is] not subject to [statutory exemption] as they are not the original hearing request forms…[but rather] data which has been entered into a system.” With respect to the request in SPR22/1354, the Division stated: As all data used by the BSEA is used for the administration of hearing requests, it is impossible to respond to this request. In an effort to respond, the Agency will provide the hearing request log for the period commencing at the end Fy 2016 to date on or before May 17, 2022. There is no hearing request log available for the period 2008 through the earlier part of 2016. In its current appeal, Commonwealth Transparency stated: The RAO failed to provide responsive public records which he admits exist… In a response sent by the RAO on June 9, 2022 (attached hereto) the RAO admits to[: t]he existence of said case management system[;d]ata entry into said case management system[; t]hat data has been successfully extracted and provided

Edward McGrath, Esq. SPR22/1353 & SPR22/1354 Page 4 June 21, 2022 from said system: “The mediator then enters that information in the case tracking system and that is the data the agency provided on May 16, 2022.” In a conversation between the Division and a staff attorney in the Public Records Division, the Division stated that while it had already considered the case tracking system in its initial responses to Commonwealth Transparency’s requests, it will perform an additional search of its case tracking system to ensure that all responsive data has been provided. Categories c and d In its initial response to Commonwealth Transparency on May 6, 2022, with respect to categories c and d, the Division stated, “we expect to provide this data…on or before May 17, 2022.” In its appeal, Commonwealth Transparency stated the Division “has alleged and proposed a fee of $33,537.50 to provide said records, to which [it] is statutorily barred as he failed to provide a written, itemized, good faith estimate…within ten business days. G.L. c. 66, §10(b)(vii); see also 950 C.M.R. 32.07(2)(a)-(i).” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” In a telephone conversation with a staff attorney in the Public Records Division, the Division stated that its initial May 6th response, on the whole, satisfies the elements of G. L. c. 66, § 10(b) because it explained why the Division does not have certain categories of records, provided an initial fee estimate for category e, identified categories of records it did not have in its control, and identified a reasonable timeframe to produce responsive records. The Division may assess a fee as allowed by law for responsive records. With respect to the Division’s fee estimate, in its June 9, 2022 response, the Division provides the following: To begin to prepare a reasonable cost for this project, the agency notes that 1,079 boxes of files are stored off site. The costs associated with obtaining those files from storage is calculated as follows: Costs to get files out of storage and return them Retrieval cost per 50 boxes Transport fee - $16.50 Handling fee - $1.65 per cubic foot

Edward McGrath, Esq. SPR22/1353 & SPR22/1354 Page 5 June 21, 2022 1 box = 1.2 cubic feet = $115.50 Return cost per 50 boxes 50 boxes x (1.2 x $1.65) + $16.50 = $115.50 Total round trip cost per 50 boxes - $231.00 Total round trip cost for obtaining and returning 1079 boxes $4,998.84 ... After obtaining the files from storage, each of the files will have to be reviewed to determine if there is a student/parent name or other information protected by 20 U.S.C. §1415(b)(7)(A) and 34 CFR §§ 300.32, 300.507, 300.508, 300.622, and 300.623.” The Division also stated, “A conservative estimate is that it will take 15 minutes per file. 5,366 x 15 minutes equals 80,490 minutes or 1,341.5 hours. At $25 an hour, the labor costs associated with finding, redacting and copying each of the notices of appearances will be $33,537.50. Although the Division provides a statutory basis to redact records pursuant to Exemption (a) of the Public Records Law, it is unclear how the Division arrived at its fee. First, it is unclear whether the Division is waiving the first four hours of time as required by law. See G. L. c. 66, § 10(d)(ii). Further, the tasks involved with the fee estimate are unclear. For example, it is unclear why the Division assesses fees to retrieve the records. Please be advised that a custodian cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Further, it is unclear why the Division requires 15 minutes per file. The Division must clarify this. Category f In its June 9, 2022 response, the Division stated: The mediator…enters that information in the case tracking system and that is the data the agency provided on May 16, 2022. While there will be no additional costs associated with obtaining the files, a review of every file looking for possible correspondence pertaining to refusing mediation will take longer than finding the notices of appearances, and the information protected by 20 U.S.C. §1415(b)(7)(A) and 34 CFR §§ 300.32, 300.507, 300.508, 300.622, and 300.623

Edward McGrath, Esq. SPR22/1353 & SPR22/1354 Page 6 June 21, 2022 will have to be redacted. The agency conservatively estimates that will take an additional 30 minutes per file and cost another $66,075. In its current appeal, Commonwealth Transparency stated, “The [Division] has alleged and proposed a fee of $66,075.00 to provide said records, to which he is statutorily barred as he failed to provide a written, itemized, good faith estimate of any fees that may be charged; which must be provided within ten business days. G. L. c. 66, § l0(b)(viii); see also 950 C.M.R. 32.07(2)(a)-(l).” As set forth above, the Division may assess fees. However, where the Division would be redacting information pursuant to the same statute across its files, it is unclear how it will take the Division an additional 30 minutes per file to redact records where parties refuse mediation. Conclusion In light of the above, the Division must clarify whether there are additional responsive records within its case tracking system. Further, while the Division may assess fees for responding to the request, the Division must provide a fee estimate consistent with this order. Accordingly, the Division is ordered to provide Commonwealth Transparency with a response to the requests, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Commonwealth Transparency