Mandy McLaren v. Nantucket, Town of - Public Schools (SPR 20231798)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 9, 2023 SPR23/1798 Katie Bedell Records Access Officer Nantucket Public Schools 10 Surfside Road Nantucket, MA 02554 Dear Ms. Bedell: On July 28, 2023, this office received your petition on behalf of the Nantucket Public Schools (School) seeking permission to charge for time spent segregating or redacting responsive records, and a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the School furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On July 25, 2023, Mandy McLaren, of the Boston Globe, requested the following: Settlement agreements entered into by your School District with parents and guardians, from July 1, 2013 through [July 25, 2023], relative to the provision of special education services and/or educational placement(s) for students with disabilities, redacted of personally identifying information. In a letter to this office on August 9, 2023, an attorney for the Boston Globe opposed the School’s petition for a waiver of the statutory limits on fees. 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 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

Katie Bedell SPR23/1798 Page 2 August 9, 2023 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 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). Request to Charge for Segregation and Redaction In its petition, the School “seeks to assess fees for time spent segregating and redacting records” in addition to segregation and redaction required by law under Exemption (a). In support of its request, the School provides the following information: The requested agreements contain information that amounts to an unwarranted invasion of a student’s personal privacy, as they “... link the name of the individual student (and his or her family) to information about the services and

Katie Bedell SPR23/1798 Page 3 August 9, 2023 programming the child will receive and information about the child’s disability, progress, and needs. Further, the agreements are likely to identify the out-of- district school, which may indirectly identify the child’s disability. This type of information is highly personal, and disclosure may result in embarrassment and potentially lead to stigma, bringing it within the scope of exemption (c).” See Champa, 473 Mass. at 97. 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. Fee in Excess of $25.00 per Hour In its petition, the School “seeks approval to charge an hourly rate of $240 per hour” and provides the following information in support of its request: The redaction of legal agreements requires both knowledge in law and knowledge of the facts surrounding the work performed by the District’s attorneys. Accordingly, this redaction cannot be performed by a member of the District or a District employee; rather, it must be completed by an attorney for the District. The hourly rate associated with the lowest paid employee who has the necessary skill required to perform this task is $240 per hour. 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 assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). However, I find the School may assess a fee limited to $75.00 per hour for attorney review. Conclusion Accordingly, I find that to the extent the responsive records contain the exempt information described above, the School may assess a fee for segregation and redaction. Further, as described above, the School may assess a fee limited to $75.00 per hour for attorney review. This office encourages Ms. McLaren 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, Ms. McLaren has the right to seek judicial review of this decision by

Katie Bedell SPR23/1798 Page 4 August 9, 2023 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: Mandy McLaren