Commonwealth Transparency v. Division of Administrative Law Appeals (SPR 20221973)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 12, 2022 SPR22/1973 Edward B. 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. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 26, 2022, Commonwealth Transparency 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); SPR22/1353 Determination of the Supervisor of Records (June 21, 2022); SPR22/1593 Determination of the Supervisor of Records (July 21, 2022); and 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 B. McGrath, Esq. SPR22/1973 Page 2 September 12, 2022 SPR22/1879 Determination of the Supervisor of Records (August 26, 2022). In my August 26th determination, I closed the administrative appeal because the Division provided a further response. Unsatisfied with the Division’s response, Commonwealth Transparency petitioned this office and this appeal, SPR22/1973, 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. Att’y 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

Edward B. McGrath, Esq. SPR22/1973 Page 3 September 12, 2022 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 August 18th Response In its August 18, 2022 response, the Division asserted: The Agency is able to calculate the total number of pages and has done so as follows: There are 1,279 boxes of files to be reviewed and redacted. 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. Moreover, 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…. If it takes one minute to review and redact each of the 3,197,500 pages, it will take 53,291 hours to complete the task. At $25 per hour, the cost to perform the work would be $13,332,291…. The Agency recognized that result was not realistic and proposed that its staff could 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, estimated that on average it could complete the search in 30 minutes per file. The Agency had to use an average estimate because the size of files varies and given the 14-year period of the request there was no other way to reasonably estimate the time involved. Using the second calculation, the Agency estimated the cost of reviewing the 14 years of files demanded by the Requester at $66,075 and asked the Requester to pay that amount. Although the Division states that it could complete the search in 30 minutes per file, it is unclear approximately how many pages are in the parts of the file where the responsive documents are likely to be located. Further, the Division should clarify if one minute per page is still needed to review and redact the responsive documents found in the relevant parts of the 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

Edward B. McGrath, Esq. SPR22/1973 Page 4 September 12, 2022 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 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