Gordon Duke v. New Bedford, City of - Public Schools (SPR 20222744)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 7, 2022 SPR22/2744 Heather Emsley Executive Director of Human Capital Services New Bedford Public Schools 455 County Street, Room 101 New Bedford, MA 02740 Dear Ms. Emsley: On November 30, 2022, this Office received your petition on behalf of the New Bedford Public Schools (School) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, the School furnished a copy of this petition to the requestor. Id. On November 23, 2022, Gordon Duke requested: [A]ll public records including books, papers, maps, photographs, recorded tapes, text messages, e-mails, in the course of official duties that relate to fire-safety inspections, lead paint, and lead contaminated water for [an identified location]. Also being sought for inspection or copies are School Injury Reports and Bullying reports as prescribed under law, chapter 4 section 7(26) inclusive. Included are[:] [1] City and state monthly/quarterly fire inspection reports from September 1, 2017 to present. [2] Any activity reports or requests for proposals related to lead abatement contractor removal or sealing on the premises with encapsulants of [an identified location] within the last 50 years. [3] Any activity reports, test results, or requests for proposals related to lead drinking water on the premises of [an identified location] within the last 50 years. [4] School injury reports and bullying reports reported within the last 3 years. 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, 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

Heather Emsley SPR22/2744 Page 2 December 7, 2022 § 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). 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 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 November 30th petition, the School states: [T]he requested records may need to be segregated and redacted where they likely meet the following inclusive, not exhaustive, exemptions set forth in G.L. c. 4, §

Heather Emsley SPR22/2744 Page 3 December 7, 2022 7(26): Requests 1 – 3 • Exemption (n) o The requested records, which specifically relate to building structures and emergency preparedness as they impute fire prevention and lead abatement, “relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth” as contemplated by this Exemption. It is the District’s reasonable judgment that certain information about structures and prevention could jeopardize public safety without redaction as it may divulge ongoing security measures utilized at the District building to which the records are responsive. The District building to which the records are responsive houses families as a registration center, students as a school building, and staff as a workplace. Therefore, it is crucial that any/all references to the safety and security of persons in this building be redacted. Request 4 • Exemption (a) o School injury reports and bullying reports may contain information specifically or by necessary implication exempted from disclosure by statute, in that the documents implicate student record/education record information under 603 CMR 23.00 and the Family Educational Rights and Privacy Act (“FERPA”). • Exemption (c) o School injury reports, by nature, likely contain medical information related to the person who endured the injury. o School injury reports likely contain information related to a person enduring an injury that may constitute an unwarranted invasion of personal privacy if disclosed. o School injury reports, related to a District employee, would constitute personnel information if occurring on work premises. o Bullying reports likely contain information that may constitute an unwarranted invasion of personal privacy and the disclosure of this information has an inherently invasive effect on victims of any such conduct. o School injury and bullying reports may contain private citizens’ (parents/guardians, students, etc.) personal phone numbers and email addresses, the disclosure of which may constitute an unwarranted invasion of personal privacy. See SPR 13/077 (“personal email addresses…favor a finding of non- disclosure.”) Accordingly, the District seeks to assess fees for time spent segregating and redacting records that may fall within statutory exemptions beyond Exemption (a)

Heather Emsley SPR22/2744 Page 4 December 7, 2022 of G.L. c. 4, §7(26) given the likelihood that the aforementioned categories of information need to be redacted. In light of the School’s petition, I find the School has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the School may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find to the extent the responsive records contain the exempt information described above, the School may assess a fee for segregation and redaction. This office encourages Mr. Duke and the School to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Any subsequent fee estimate from the School must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Duke 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: Gordon Duke Arthur Motta