Nathaniel Story v. Duxbury, Town of - Public Schools (SPR 20231991)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 8, 2023 SPR23/1991 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.” Prior Appeal This request was the subject of a previous appeal. See SPR23/1549 Determination of the Supervisor of Records (July 20, 2023). In my July 20th determination, I found that the School must provide additional information regarding its fee estimate. The School provided a response on August 3, 2023. Unsatisfied with the response, Mr. Story petitioned this office and this appeal, SPR23/1991, 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 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 SPR23/1991 Page 2 September 8, 2023 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). 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). The School’s August 3rd Fee Estimate In its August 3, 2023 response, the School provided email communications and gave a fee estimate of $147.91 for investigation reports. The School stated: the District responded that the District charged [a named individual] a fee for the time required to search for, compile, segregate, redact, and reproduce those records, and that it was the District’s understanding that because all requesters must be treated equally, you must be charged the same fee. The School further explains: 5 minutes per page is an estimate, and it is reasonable for the reasons described in the letter. In actuality, the District spent well over the estimated time in making these redactions, but it did not charge for this additional time and therefore the only applicable fee is based on the District’s lower estimate. The fee estimate notes that the reports were expected to contain information exempt under a number of different exemptions, including under Exemption (a) which are, by definition, redactions required by law. Laws that were anticipated to and did in fact require redactions for these reports included, without limitation, Title IX; the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. §1232g; M.G.L. c.71, §§34D and 34E; M.G.L. c.93H; M.G.L. c.112, §§135A and 135B; and applicable regulations for each statute. The time estimated and actually required to complete the production of these records consisted primarily of segregation and redaction time, including reviewing each page to determine which portions were subject to redaction or withholding, making those redactions, and then providing the explanations and responses required by law. Current Appeal In his appeal, Mr. Story states, “[a named individual] requested the report from Duxbury

Anthony Keady SPR23/1991 Page 3 September 8, 2023 Public Schools in 2022. She paid the $147.91 fee the district requested, and the district provided her with the redacted report. I am now requesting that redacted report that was provided to [a named individual]. [The School] asserts that the school must charge me the same fee they charged her, even though there is no more work to be done (as the report has already been redacted)[.]” Upon review, where the record appear to have been previously provided to a requestor, it is unclear how the School may assess a fee for the time required to search for, compile, segregate, redact, and reproduce the record. Further, it remains uncertain how the School requires five minutes per page to review the responsive record when the investigative report has previously been redacted and provided to another requestor. The School must clarify these matters. I encourage Mr. Story and the School to communicate further in order to facilitate producing records efficiently and affordably. See 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 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