Commonwealth Transparency v. Division of Administrative Law Appeals (SPR 20221593)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 21, 2022 SPR22/1593 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 petition of Commonwealth Transparency appealing the response of the Division of Administrative Law Appeals (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 26, 2022, the requestor sought: 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.” Previous appeals This request was the subject of previous appeals. See SPR22/1148 Determination of the Supervisor of Records (May 25, 2022) and SPR22/1353 Determination of the Supervisor of Records (June 21, 2022). In my June 21st determination, I directed the Division to provide additional information regarding its fee estimate. The Division provided a further response on 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. SPR22/1593 Page 2 July 21, 2022 July 6, 2022. Unsatisfied with the Division’s response, the requestor petitioned this office and this appeal, SPR22/1593, 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 agency or municipality 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. 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. 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). 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).

Edward McGrath, Esq. SPR22/1593 Page 3 July 21, 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 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 July 6th response In its July 6, 2022 response, the Division asserts that “. . . its estimate of 30 minutes per file to conduct the review and redaction of personally identifiable information at a cost of $66,075 was reasonable and stands by that estimate.” The Division explains, “[t]here are 1,279 boxes of files to be reviewed and redacted (1,079 boxes are stored offsite and 200 boxes are kept on site). Each box contains approximately 2,500 sheets of paper. There are, therefore, 3,197,500 pieces of paper to be reviewed to locate notices of appearances and to determine if there is a reference to a declined mediation. Once a responsive document is found, it will be necessary to redact 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 from the responsive documents that are found.” The Division further explains, “. . . because there is no required form used to decline mediations, to ensure any written rejections are provided, each piece of paper contained in a file will have to be reviewed. Allowing one minute per page to perform the task, it would take 53,291 hours to complete the task. At $25 per hour, the cost would be $13,332,291. The [Division] believes, however, that staff can conduct the review more quickly by using their experience to focus on parts of each file where pertinent documents are likely to be located and, therefore, stands by its estimate that it can complete the search in 30 minutes per file.” The Division states, [a]fter reviewing the Determination, the [Division] recognizes that there would be some overlap between the searches. Notices of Appearances are generally filed early in a case and the substance of the document is usually obvious and they are easily recognizable. Because there is no specific form used to reject mediation, they will be much more difficult to recognize. A review of every file looking for possible correspondence pertaining to refusing mediation will take longer than finding the notices of appearances and, therefore the agency believes using the longer time permitted for the more complicated search for mediation rejections makes more sense.” Although the Division states that it requires 30 minutes to redact each file, it is unclear the number of pages there are in each case file, nor how many minutes per page the Division requires to review and redact each page of the case file. The Division must clarify these matters. This office encourages the requestor and the Division to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Division must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable

Edward McGrath, Esq. SPR22/1593 Page 4 July 21, 2022 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). The requestor may wish to narrow the scope of the request. Conclusion Accordingly, the Division is ordered to provide the requestor with a response to the request, 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, Manza Arthur Supervisor of Records cc: Commonwealth Transparency