Ben Tobin v. Mohawk Trail Regional School District (SPR 20232970)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 22, 2023 SPR23/2970 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 Appeals These requests were the subject of prior appeals. See SPR23/2279 Determination of the Supervisor of Records (October 6, 2023) and SPR23/2532 Determination of the Supervisor of Records (November 3, 2023). In my November 3rd determination, I found that it was unclear the number of minutes that the District must spend per page for the redactions. On November 6, 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, SPR23/2970, 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

Karen Totman SPR23/2970 Page 2 December 22, 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 November 6th Response In its November 6, 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 SPR23/2970 Page 3 December 22, 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 (Approximately 8 seconds per page. Some pages might take less time and others will take more time). 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 am requesting that the records be provided to me free of charge in electronic form.” Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). In this case, where the District has explained that it will charge for search and segregation of the records and the tasks involved, and has explained the amount of time it will spend per page for the redaction of records, and confirmed that the lowest paid individual with the necessary skill is paid more than $25 per hour, I find the District has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record).

Karen Totman SPR23/2970 Page 4 December 22, 2023 I encourage Mr. Tobin and the District to communicate in order to facilitate producing records efficiently and affordably. Mr. Tobin may wish to further narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The District must use its knowledge of the records to facilitate providing any responsive records. 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, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Ben Tobin