Pamela Ahern v. Natick, Town of - Public Schools (SPR 20232333)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 16, 2023 SPR23/2333 Timothy Luff Deputy Superintendent Natick Public Schools 13 East Central Street Natick, MA 01760 Dear Mr. Luff: I have received the petition of Pamela Ahern appealing the response of the Natick Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 25, 2023, Ms. Ahern requested “[a]ll email communications among all school administrators, the School Committee, and the public with the key words ‘Proclamation,’ ‘Pride Flag,’ ‘Progress Pride Flag,’ ‘rainbow flag,’ for the time period June 2023 through September 2023.” On September 28, 2023, the School provided a response. Unsatisfied with the School’s response, Ms. Ahern petitioned this office and this appeal, SPR23/2333, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be 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

Timothy Luff SPR23/2333 Page 2 October 16, 2023 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. 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, 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 September 28th Response In its September 28, 2023 response, the School provided a fee estimate of $800.00. The School asserts: After searching based on the reduced scope, I found 2,796 emails that may be responsive to your request. The same exemptions and fee estimate reasoning is applicable to this request. Please find below a fair cost estimate for the production of these records: Segregation time: 28 Hours Redaction Time: 6 Hours Total Time: 34 hours Total time charged: 32 (-2) Hours Cost per hour: $25 Total Cost: $800

Timothy Luff SPR23/2333 Page 3 October 16, 2023 The School’s September 28th response references an earlier response dated September 25, 2023. The School in its September 25th response asserted: Please note that the following exemptions in the Massachusetts Public Records Law may apply to your request and therefore documents will require segregation and redaction before such records can be produced: Exemption A of the public records law requires us to withhold records that are specifically exempt by statute. For example, specific confidential information within any of the emails will be exempt from disclosure under the Massachusetts Student Records Law, 603 CMR 23.00, as well as the Family Educational Rights and Privacy Act (FERPA). 20 U.S.C.§ 1232g. Exemption C of the public records law allows us to withhold records that pertain to a personal privacy interest of parties identified within the records which may constitute an unwarranted invasion of personal privacy. These emails may contain detailed confidential information pertaining to students and/or their families, and staff, which, if made public, would invade such privacy if not redacted. Attorney/Client communications and Attorney work products: Confidential communications between governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege…. Based upon previous record requests and provision of records to other requesters, the Natick Public Schools averages more than 10 hours per 1000 documents to search and segregate records that may contain personal and/or confidential information regarding students, members of the public, and/or personnel. Redaction typically averages another 2 hours per 1000 documents, possibly more, dependent upon the confidential material found within each document …. Current Appeal In her appeal, Ms. Ahern asserts: I’ve submitted several FOIA requests to Natick Public Schools for which the fees seem excessive and make it extremely difficult to get access to these public records. Is there any way for you to help us with this and get the fees waived in the interest of education transparency and accountability? Or do you have other recommendations as to how we can put in this request to get access to these records. Although the School has estimated that the process of segregating and redacting the documents responsive to Ms. Ahern’s September 25th request will take 34 hours of employee

Timothy Luff SPR23/2333 Page 4 October 16, 2023 time, it is unclear why this amount of time is required. Additionally, it is unclear if the School is redacting or segregating 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). As such, the School must clarify if the fee assessed includes time to segregate or redact records not required by law. Further, although the School indicates that it would charge an hourly rate of $25, it is unclear whether the School has used the hourly rate of the lowest paid employee capable of performing the tasks. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.07(2)(i). The School must clarify this. 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). Waiver of fees In her petition, Ms. Ahern requests that the fees be waived. Ms. Ahern 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 Ms. Ahern and the School to communicate in order to facilitate producing records efficiently and affordably. Ms. Ahern 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) (a 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 municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the School is ordered to provide Ms. Ahern 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: Pamela Ahern