Pedro DeLeon v. Waltham, City of - Public Schools (SPR 20221968)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 31, 2022 SPR22/1968 Brian K. Reagan, Ed.D. Superintendent of Schools Waltham Public Schools 617 Lexington Street Waltham, MA 02452 Dear Dr. Reagan: I have received the petition of Attorney Jonathan Atwater on behalf of the Waltham Public Schools (School) 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 this petition to the requestor. G. L. c. 66, § 10(c). On March 13, 2022, Pedro DeLeon requested four categories of documents. Previous Appeals This request was the subject of previous appeals. See SPR22/0720 Determination of the Supervisor of Records (April 5, 2022), SPR22/0798 Determination of the Supervisor of Records (April 20, 2022), and SPR22/1790 Determination of the Supervisor of Records (August 17, 2022). In my August 17th determination, I ordered the School to clarify its claims under Exemptions (a), (c), and (n) of the Public Records Law, to clarify its claims under the attorney- client privilege, and to identify the records it intends to withhold. I also note that in the April 20th determination, the Supervisor ordered the School to demonstrate whether it had responded within 10 business days of receiving the request, in order to charge fees. 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: 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

Brian K. Reagan, Ed.D. SPR22/1968 Page 2 August 31, 2022 (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). 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). Request for Additional Time to Produce Responsive Records In its August 25, 2022 petition, the School requests “an extension of thirty (30) business days to produce responsive records.” In support of the request, the School provides the following information: Due to the expansive nature of the public records request, the search parameters have resulted in the production of over 30,000 documents. . . . The District is now working to provide the public records; however, the process is slow and time-consuming due to the volume of records that the District must review. Given that Respondent is a school district, many of these documents likely contain student records related information that must be segregated or redacted. Moreover, the request has also resulted in the production of additional documents that must be segregated or redacted as disclosure could result in the infringement of the privacy rights of other individuals identified in the documents. This process is an extensive undertaking that requires the devotion of a significant amount of time and resources by the District and this office as legal counsel. It is especially onerous as it has forced the District to reallocate resources into the review of roughly 30,000 documents while it simultaneously prepares for the start

Brian K. Reagan, Ed.D. SPR22/1968 Page 3 August 31, 2022 of the school year. Furthermore, there does not appear to be any public interest that would be served by expeditious disclosure. I find that in light of the need to search for, collect, segregate and examine the records, the scope of redaction required to prevent unlawful disclosure, and the capacity of the School to produce the requested records without an extension, the School has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The School is granted an extension of 30 business days. Petition to Assess Fees – Municipalities 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, § 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. 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 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (two) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the

Brian K. Reagan, Ed.D. SPR22/1968 Page 4 August 31, 2022 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 The School is advised that G. L. c. 66, § 10(e) provides in pertinent part 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).” As noted above, in the April 20th determination, the Supervisor ordered the School to demonstrate whether it had responded within 10 business days of receiving the request, in order to charge fees. Where the School has not demonstrated that it responded within 10 business days of the original request, permission to charge fees for segregation and redaction cannot be granted. Conclusion Accordingly, I find the School has established good cause for a time extension of 30 business days as described above. However, as discussed above, permission to charge for segregation and redaction cannot be granted. Please note, Mr. DeLeon 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Pedro DeLeon