Mary Kate McGowan v. Fairhaven, Town of - Public Schools (SPR 20222440)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 9, 2022 SPR22/2440 Melissa Bouchard Executive Assistant Fairhaven Public Schools 128 Washington Street Fairhaven, MA 02719 Dear Ms. Bouchard: I have received the petition of Mary Kate McGowan appealing the response of the Fairhaven Public Schools (School/District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 30, 2022, Ms. McGowan requested “Fairhaven’s policies and procedures for special education including those stemming from the SEPPS (special education program plan statement).” The School provided a response on October 12, 2022. Unsatisfied with the School’s response, Ms. McGowan petitioned this office and this appeal, SPR22/2440, was opened as a result. After this appeal was opened, the School provided a further response dated November 2, 2022. Fee estimate – municipalities 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. 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, 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

Melissa Bouchard SPR22/2440 Page 2 November 9, 2022 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). The School’s October 12th and November 2nd Responses In its October 12, 2022 response, the School provided a fee estimate of $125.00. The School asserts: The District possesses records responsive to your request. There are approximately two hundred seventy (270) pages of documents that fall within your search parameters. The good faith fee estimate associated with the compilation review, and production of these records is as follows: Item Estimated Time Rate Estimated Cost Search and 0.5 hours $25.00 per hour[] $12.50 compilation time Review time 4.5 hours $25.00 per hour $112.50 Total estimated cost 5 hours $25.00 per hour $125.00 It is estimated that [it] will take the District a half (0.5) an hour to search for and compile the potentially responsive documents. Although the Special Education Program Plan Statement and supporting documents are easily available, your request imputes many other documents that involve consulting with different departments to obtain and find as they are not readily available. The District is aware of about two hundred and seventy (270) pages of documents that may fall within the parameters of your request, and requires that an individual review each document to ensure it falls within your request as the District possesses many documents related to special education services but may not fall within the confines of your request. Assuming [it] . . . will take an average of 1-1.5 minutes to review each page of the documents given the density of their content, I calculated for estimate purposes that assuming a one (1) minute review time, it will take approximately four hours and thirty minutes (4.50) to review all of the records. This number is based on the need to carefully read each page and the possibility that other individuals may need to be consulted throughout this process, especially those outside the Student Services department…. The District intends to produce all records responsive to your request, withholding only records and portions of records, if any, that do not constitute public records

Melissa Bouchard SPR22/2440 Page 3 November 9, 2022 per the exemptions enumerated by the public records law or that are protected by other legally applicable privileges. If any such records or portions of records are eventually withheld by the District, the District will provide you with the specific reasons and exemptions upon which any withholdings are based. The School also stated that “[a]lthough the public records law limits the District to assessing a maximum rate of $25.00 per hour, please note that the hourly rate of the lowest-paid employee qualified to complete your request exceeds that rate.” In a further response dated November 2, 2022, the School stated: [T]he District has assessed a reasonable fee within the statutory hourly limit to produce the records. While G.L. c. 66, § 10(d)(v) provides that a records access officer may waive or reduce the amount of any fee charged, the Supervisor of Records is not similarly authorized to waive or reduce a fee. In addition, there are no federal or state laws or regulations excepting a Special Education Program Plan Statement (“SEPPS”) from the provisions of G.L. c. 66, § 10(d). As set forth in the District’s October 12th response, the request does not just impute the SEPPS, but several other documents that my relate to the statement, as the requestor asked for all “policies and procedures for special education including those stemming from the [SEPPS]. Although the School has estimated that the process of reviewing the responsive documents for production will take 4.5 hours of employee time, it is unclear what the School is reviewing the records for. For example, it is unclear if the School is reviewing the documents to redact the records pursuant to certain exemptions. Under the Public Records Law, a fee may 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). The School must clarify if redactions are required by law. Further, 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). Population data shall be determined by the decennial U.S. Census, and it shall be the burden of the RAO to provide population data information when responding to a request. 950 C.M.R. 32.07(2)(m)(2)(ii). As such, the School must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Current Appeal In her appeal, Ms. McGowan asserts: [A]lthough they have responded, they have refused to provide the documents.

Melissa Bouchard SPR22/2440 Page 4 November 9, 2022 They claim to have them but they claim that it will cost money for them to provide those documents to me….As you know, the SEPPS requires that the districts have these documents readily available to share with the public on request. Waiver of fees In her petition, Ms. McGowan contends she is entitled to a waiver of fees because “SEPPS requires that the districts have these documents readily available to share with the public on request.” Ms. McGowan is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. I encourage the requestor and the School to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the scope of the request or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The School 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). Conclusion Accordingly, the School 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: Mary Kate McGowan