Ben Tobin v. Mohawk Trail Regional School District (SPR 20232532)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 3, 2023 SPR23/2532 Karen Totman Executive Secretary to the Superintendent Mohawk Trail Regional School District 24 Ashfield Road Shelburne Falls, MA 01702 Dear Ms. Totman: I have received the petition of Ben Tobin appealing the response of the Mohawk Trail Regional School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 17, 2023, Mr. Tobin requested “... the emails sent by [a named individual] this past week … I would also like to request the same for [a named individual].” Additionally, on October 2, 2023, Mr. Tobin requested, “the emails for all the Senior Capstone advisors from the week of 9/9- 9/25-9/29[.]” Prior Appeal The September 17, 2023 request was the subject of a prior appeal. See SPR23/2279 Determination of the Supervisor of Records (October 6, 2023). In my October 6th determination, I found that the District needed to revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). On October 17, 2023, the District responded and provided Mr. Tobin with a fee estimate. Unsatisfied with the District’s response, Mr. Tobin petitioned this office and this appeal, SPR23/2532, 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 Department 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

Karen Totman SPR23/2532 Page 2 November 3, 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. Attorney 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 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 District’s October 17th Response In its October 17, 2023 response, the District provided a fee estimate of $125.00. The District stated the following: The date range listed has been interpreted by [the District] as date range of September 9 to September 29, 2023. During that date range the Senior Capstone Advisors generated 1,828 emails containing the search word “capstone”. These emails have not been reviewed one-by-one but do include duplicates (same email to each recipient), student and colleague communications, and community communications… we have determined by compiling the 1,828 email records, it took 1 hour to search by keyword and combine the emails into a single file. To thoroughly review, remove duplicates, and redact student identification (The

Karen Totman SPR23/2532 Page 3 November 3, 2023 District’s further explanation as to the need for redactions is that some of the records or portions of the records are protected by the student records statute (M.G.L. c. 71, s. 34D) and the associated regulations (603 SMR 23.00). It is necessary to review each email to ensure that confidential student medical and/or educational information is not released as part of the District’s response, the requested information will take approximately 4 hours. In accordance with the Public Records Law, the hourly fee assessed cannot exceed $25.00 per hour. For communities with a population of more than 20,000, the hourly fee for the first two hours is waived. The [District] has a population of less than 20,000. [A named individual], Executive Secretary to the Superintendent of Schools, will be generating the documents requested, and her hourly rate is $30.52 per hour. Based upon the above information, I request that you send the [the District] a check for $125.00… Current Appeal In his appeal, Mr. Tobin states, “I would like to contest the fee because I’ve not seen the requested list of documents. Furthermore two of my separate requests have been combined to create this fee. There were two separate requests for capstone related emails so the date range is not accurate.” Mr. Tobin is reminded that a requestor may not divide a request into multiple parts in order to circumvent the fees allowed by the Public Records Law. Although the District states that it would take 4 hours to redact the 1,828 records, it is unclear the number of minutes that the District must spend per page for the redactions. The District must clarify this matter. Conclusion Accordingly, the District is ordered to provide Mr. Tobin 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. Sincerely, Manza Arthur Supervisor of Records cc: Ben Tobin