Nathaniel Story v. Duxbury, Town of - Public Schools (SPR 20231549)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 20, 2023 SPR23/1549 Anthony Keady Director of Human Resources Duxbury Public Schools 93 Chandler Street Duxbury, MA 02332 Dear Mr. Keady: I have received the petition of Nathaniel Story appealing the response of the Duxbury Public Schools (School) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 16, 2023, Mr. Story requested “all responses (including any responsive documents and communications with the requester) provided by the Town of Duxbury in response to the public records request made by [a named individual] on 02/03/2022.” The School provided a response, including a fee estimate on June 30, 2023. Unsatisfied with the response, Mr. Story petitioned this office and this appeal, SPR23/1549, was opened as a result. Fee Estimates 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 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 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

Anthony Keady SPR23/1549 Page 2 July 20, 2023 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Waiver of fees In his petition, Mr. Story indicates that he is entitled to a waiver of fees because he believes that, although the fee estimate was provided to him within 10 business days, the fee estimate was written for and addressed to another individual and did not address his request. Mr. Story 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. Upon review, the School’s fee estimate response is timely, because Mr. Story sent the request to the School on June 16, 2023 and the School provided a response on June 30th. Where the tenth business day to provide a response was July 3rd, I find the School may assess a fee for this records request. Please note, pursuant to 950 C.M.R. 32.02, a “Business Day” is “Monday through Friday. Business day does not include Saturdays, Sundays, legal holidays, or other weekdays where a custodian’s office is closed unexpectedly.” Reasonableness of the fee estimate Where the School provided a response within 10 business, it is necessary to review the reasonableness of the School’s fee estimate. The School’s June 30th Fee Estimate In its June 30, 2023 response, the School provided a fee estimate of $147.91. The School stated: The investigation reports responsive to your request contain information exempt from disclosure in whole or in part under the public records law pursuant to M.G.L. c.4, §7(26)(f)… Information about a particular student and information which identifies or could be used to identify a particular student is exempt information pursuant to M.G.L. c.4, §7(26)(a)… with the relevant statutory authority being M.G.L. c.71, §§34D and 34E, as implemented through 603 CMR 23.07(4), which exempt student record information from disclosure to third parties; the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. §1232g, which exempts education records; and also pursuant to M.G.L. c.4, §7(26)(c)

Anthony Keady SPR23/1549 Page 3 July 20, 2023 The School further explains: In municipalities with a population of more than 20,000 persons, requesters are entitled to two (2) hours of time spent searching for, compiling, segregating, redacting, and reproducing records at no cost to them; all other time involved in responding to a public records request may be subject to a fee. See M.G.L. c.66, §10(d)(iii); 950 CMR 32.07(m). In the most-recent decennial U.S. Census, the Town of Duxbury had a population greater than 16,090 and, as such, the District may charge you for all time involved in responding to your request. Given the nature and complexity of the exemptions and privileges cited above, and the wide-ranging and confidential and/or private nature of the related information, the lowest paid employee of the District who could continue the search for, compilation, review, segregation, redaction and reproduction of records and make judgments as to which information is public and which information is exempt and must be redacted would be a member of the District’s central office staff and/or its legal counsel, all of whom are compensated at rates exceeding $25.00 per hour. As such, any time spent completing the response process will be charged at the maximum rate of $25.00 per hour. The School additionally explains: we estimate that it will take on average at least five (5) minutes per page to fully search for, compile, review, segregate, redact, and reproduce each responsive record… Considering the time already spent on your request and the tasks remaining to complete, we estimate the time will be comprised on average of approximately 5% search and compilation time, 5% segregation time, and 90% redaction time for each record; we estimate the reproduction time at the end of this process will be nominal. For the seventy-one (71) pages of responsive records remaining, it would take an estimated 5 hours and 55 minutes of employee time to complete the District’s search for, compilation, review, segregation, redaction and reproduction of these records, for a total initial fee of One Hundred Forty- Seven Dollars and Ninety-One Cents ($147.91). Although the School claims that it is assessing a fee for redactions required by law and redactions under Exemptions (c) and (f), it is unclear how the Department can assess a fee for redactions under Exemptions (c) and (f) in this matter. 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). I am not aware that the School has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, although the School may

Anthony Keady SPR23/1549 Page 4 July 20, 2023 assess a fee for redactions required by law as in Exemption (a), it is uncertain whether the fees include time to redact records under Exemptions (c) and (f). The School must clarify this. Further, it is additionally uncertain why the School requires “. . . five (5) minutes per page to fully search for, compile, review, segregate, redact, and reproduce each responsive record.” See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Conclusion Accordingly, the School is ordered to provide Mr. Story with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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: Nathaniel Story