Deborah Colon v. Carver, Town of - Public Schools (SPR 20221517)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 7, 2022 SPR22/1517 Scott E. Knief Superintendent of Schools Carver Public Schools 3 Carver Square Blvd Carver, MA 02330 Dear Superintendent Knief: On July 1, 2022, this office received your petition on behalf of the Carver Public Schools (School/District) seeking 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, the School furnished a copy of its petition to the requestor. G. L. c. 66, § 10(c). On June 21, 2022, Deborah Colón requested, “…email correspondence between [three identified persons] from 5/13/22 through present.” In a letter to the School dated June 22, 2022, Ms. Colón states, “I would like to change the date range on my request. It is still for the same people; however, please begin the search and include records beginning at the start of this school year.” Additionally, Ms. Colón requested, “…any emails, correspondence, etc. using the search engine ‘spring fling.’” Ms. Colón notes, “[p]lease include any teachers, administration, etc. that fall within the parameter’ (hereinafter referred to as ‘Spring Fling Request’).” 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; 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

Supt. Scott E. Knief SPR22/1517 Page 2 July 7, 2022 (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). 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) 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 July 1st response to the requestor, the School states the following: I have reviewed your request and considered the records in custody and control of the District. The broad nature of your requests resulted in a potential 2,852 documents related to the June 22, 2022 Request for Emails and a potential 830 documents related to the Spring Fling Request. Given the broad nature of this request, I anticipate many of these documents will be redacted or withheld. Nevertheless, your request potentially includes student records, employment information, and other private information prohibited from disclosure. In its July 1st petition, the School notes that “…the employee available to assist in this response has additional responsibilities that they must complete in order to ensure the operation of school business. As such, the District is requesting ninety (90) days to respond.” 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. 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

Supt. Scott E. Knief SPR22/1517 Page 3 July 7, 2022 actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 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 July 1st petition, the School contends that “[t]he attached record request is broad in scope and relates to correspondence by members of the school community, such as employees,

Supt. Scott E. Knief SPR22/1517 Page 4 July 7, 2022 who often correspond on information that is exempt from disclosure under public records law and even prohibited from disclosure by statute. For example, student records are prohibited from disclosure pursuant under state and federal law. Also, the District expects that much of the correspondence would relate to personnel information that is exempt from disclosure under public records law. See Student Records Law MGL Ch. 71 § 34D, 34E; FERPA 20 USC §1232G; and Right of Privacy MGL Ch. 214 §1B; See also MGL Ch. 4 §7(26)(a)-(c)…Based upon the broad and non-specific nature of these requests and the resources required to respond, the District believes it is reasonable to assess a fee to segregate and redact the requested information.” Conclusion 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, Ms. Colón 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: Deborah Colón Gina Marie Russell