Pamela Ahern v. Natick, Town of - Public Schools (SPR 20232483)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 2, 2023 SPR23/2483 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.” Prior Appeal This request was the subject of a previous appeal. See SPR23/2333 Determination of the Supervisor of Records (October 16, 2023). In my October 16th determination, I found that the School must clarify if the fee assessed includes time to segregate or redact records not required by law and whether the hourly rate of $25 is that of the lowest paid employee capable of performing the tasks. The School responded on October 19, 2023. Unsatisfied with the response, Ms. Ahern petitioned this office and this appeal, SPR23/2483, 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). 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 SPR23/2483 Page 2 November 2, 2023 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 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 Fee Estimate In its September 28, 2023 response, the School provided a fee estimate of $800.00. The School asserted: 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:

Timothy Luff SPR23/2483 Page 3 November 2, 2023 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 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 …. The School’s October 19th Response In its October 19, 2023 response, the School provided an explanation for its September 28th fee estimate. The School asserts: The Natick Public Schools retains all emails as required by law. The archive is a

Timothy Luff SPR23/2483 Page 4 November 2, 2023 system that holds emails relative to protected student records; personnel information including information about employment decisions, evaluations, medical information, etc.; documents that are protected by attorney client privilege; and citizen information sent to administrators that was intended to remain in confidence and not shared with other parties. When an expansive request is received requesting all emails relative to a topic which is discussed frequently within the schools, the emails of all district/school administrators, families, and school committee members are subject to review. This search takes a tremendous amount of public time as the employee completing the task is required to search through the archive for each email, read each email, identify the record as privileged (Student Record, Personnel Record, Attorney Client Privileged Record, etc) and to determine if one of the exemptions under the public records law exists. Once identified, the record is either segregated or redacted to ensure that confidential information is not revealed. There are many emails within the system that are protected and must be segregated and redacted… The identified exemptions from the Natick Public Schools in our response were applicable to this request and required to protect the confidentiality required under the law. Additionally, the School states: [T]he Natick Public Schools has worked with Ms. Ahern’s expansive and broad requests to reduce the scope, and has provided records at no cost to her. Ms. Ahern made three separate requests for records in September of 2023, with the request subject to this appeal resulting in two amended requests at a reduced scope. All requests have resulted in the provision of records at no cost to Ms. Ahern… The Natick Public Schools has worked in good faith to provide reasonable fee estimates to this requester based on the broad and expansive requests she has made, but has also worked with her to reduce the scope, and has provided multiple records at no cost to the requestor. The School further states: The lowest paid Administrative Assistant in the Natick Public Schools with the authority to review confidential information that would be found in the emails requested is $26.84 per hour. Further, only two Administrative Assistants have the authority to review confidential personnel information, and thus any documents found would have to involve one of these employees or administration for any necessary segregation or redaction. The lowest paid of those two employees are significantly greater than the rate charged. The Natick Public Schools assessed a charge of $25 per hour, rather than petitioning the Supervisor to increase the amount allowed under the public records law[.]

Timothy Luff SPR23/2483 Page 5 November 2, 2023 Current Appeal In her appeal, Ms. Ahern asserts: [W]e want to see all of the community feedback sent to the Natick School Committee and administration about the Progress Pride flag proclamation from the time it was voted on through the start of the school year… My appeal was specific to this request and its scope, not other requests I asked for. I ask that… Natick Public Schools makes a recommendation on how to best get access to this public information, since Natick Public Schools is aware of what we are trying to assess from this FOIA request. Although the School claims that it is assessing a fee for redactions required by law and redactions under Exemptions (a), (c), and Attorney-Client Privilege, it is unclear how the Department can assess a fee for redactions under Exemption (c) 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 assess a fee for redactions required by law as in Exemption (a) and attorney-client privilege, it is uncertain whether the fees include time to redact records under Exemptions (c). The School must clarify this. 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 the response to this office at pre@sec.state.ma.us.

Timothy Luff SPR23/2483 Page 6 November 2, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Pamela Ahern