Jessica Machado v. Greater New Bedford Regional Vocational Technical High School (SPR 20240147)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 1, 2024 SPR24/0147 Maria Fredette Records Access Officer New Bedford Regional Vocational Technical School District 1121 Ashley Boulevard New Bedford, MA 02745 Dear Ms. Fredette: I have received the petition of Jessica Machado, of the New Bedford Guide and Fall River Reporter, appealing the response of the New Bedford Regional Vocational Technical 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 January 16, 2024, Ms. Machado requested the following records: [1.] The personnel file of former [identified] employee including but limited to his application, resume, hiring records, personal references and documents surrounding his departure from the school. [2.] All emails that include [an identified individual’s] name, including those from individuals outside the administration or staff. If there are any emails outside the scope of an identified individual] employment, I would like those to be included as well. The District responded on January 17, 2024, providing a fee estimate. Unsatisfied with the response, Ms. Machado petitioned this office and this appeal, SPR24/0147, was opened as a result. Fees - 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 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

Maria Fredette SPR24/0147 Page 2 February 1, 2024 ($.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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The District’s January 17th Fee Estimate In the District’s January 17, 2024 response, the District provided a fee estimate of $825.00. The District advised, “[t]he actual cost of the requested records may vary, however, the good faith cost estimate to comply with your request is $825.00 (33 hours at $25.00 per hour).” The District further stated, “[t]here are over 15,000 documents potentially responsive to the second part of your request. To determine whether the email correspondence requested within GNB’s possession, custody, and control may include privileged information, our firm will have to review such documents to determine whether statutory or other exemptions may apply. Given that process of segregating and redacting the potentially responsive documents is a time- consuming process and one that must be done with care to protect the interests of the District, and the privacy of its employees and students, it is estimated that at least thirty-five (35) hours will be needed to complete these tasks.” The District advised, “[t]he fee is limited to 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, not to exceed $25.00 per hour. M.G.L. c. 66, §10(d)(iii).” The District further advised, “[a]lthough our firm’s hourly rate exceeds $25.00, we have used that figure in developing a good faith estimate.” In its response, the District stated, “...given the nature of your request, some responsive materials may contain personal and identifiable information pertaining to current District students, which are education and student records statutorily exempt from disclosure under the Public Records Law pursuant to the Family Educational and Rights Act (“FERPA”), set forth at 20 U.S.C. § 1232g(a)(4)(A), and M.G.L. c. 71, §§ 34D and 34E, and 603 CMR 23.00. . . . The District intends to withhold any responsive records that are exempt under the privacy exemption set forth at M.G.L. c. 4, §7(26)(c). . . .”

Maria Fredette SPR24/0147 Page 3 February 1, 2024 Although the District has opined that the time to segregate and redact responsive documents for production will cost $825.00, it is unclear why the District requires 35 hours to produce the records. Additionally, it is unclear how many minutes per page are required to review the requested records. Further, although the District has explained that its fees include time to segregate or redact records under Exemption (a), it is unclear if the estimated 35 hours include time to segregate or redact records under Exemption (c). See G. L. c. 66, § l0(d)(iii) (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)). The District must clarify these matters. For the reasons discussed above, I find the District must 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). Conclusion Accordingly, the District is ordered to provide Ms. Machado with a response to the request, 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: Jessica Machado