Jean Costello v. Whittier Reg. Voc. Tech. School (SPR 20240189)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 5, 2024 SPR24/0189 Lisa Rand HR Director Whittier Regional Vocational Technical High School 115 Amesbury Line Road Haverhill, MA 01830 Dear Ms. Rand: I have received the petition of Jean Costello appealing the response of the Whittier Regional Vocational Technical High School (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 13, 2023, Ms. Costello requested a “list of all individuals compensated by Whitter” for the calendar year 2022. The School provided a response on December 27, 2023. On December 28, 2023, Ms. Costello modified her request to “a compensation report of all individuals including employees, per-diem workers and those who may receive stipends.” The School provided a response on January 12, 2024, which included a fee estimate. Unsatisfied with the response, and objecting to the fees, Ms. Costello petitioned this office and this appeal, SPR24/0189, 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. 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. 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

Lisa Rand SPR24/0189 Page 2 February 5, 2024 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. Fees - 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 how 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 January 12th response In its January 12, 2024 response, the School provides a fee estimate of $344.50 for 13 hours of work at $25.00 an hour spent “redact[ing] manually for both redactions required by law…and those redactions permitted by law.” The School states the following: There are approximately 390 pages of responsive records, and it is anticipated that it will take approximately 2 minutes per page to redact the information required by law. That amounts to 780 minutes of time, or 13 hours. Pursuant to the Public Records Access Regulations, Whittier Tech may charge for this time, at the hourly rate of the lowest paid person capable of performing the redactions or $25/hour (which is the maximum rate permitted without authorization of the Supervisor of Records). Where the information to be redacted is confidential, only those staff persons with access to such confidential information may perform the redactions. The hourly rate of the lowest paid person with such access to the confidential information at issue is paid more than $25/hour, and thus you will be charged the maximum rate. The fee estimate for the total staff time is $325.00. In addition, because we do not have the ability to redact this information manually, hard copies of the records will need to be printed for redaction purposes, at a rate

Lisa Rand SPR24/0189 Page 3 February 5, 2024 of 5 cents per page (or a total of $19.50). The total fee estimate is $344.50. Upon receipt of payment in this amount, we will begin the work necessary to further comply with your request. Because this request is a follow up to the December 13th request, and you were provided records in response to that request at no charge, Whittier considers the time spent on responding to that request as meeting the requirement that the first two hours of work be at no charge, where the service area of Whittier Tech exceeds 20,000 persons in population. Redactions to responsive records will be made in accordance with the following. Exemption (a) to the Public Records Law, G.L. c. 4, §7(26)(a). Exemption (a) covers those records which are “specifically or by necessary implication exempted from disclosure by statute,” which may be withheld from disclosure. G.L. c. 4, §7(26)(a). . . . Here, social security numbers must be redacted from responsive records, pursuant to G.L. c. 93H, through operation of Exemption (a). Similarly, tax information must be redacted pursuant to 830 CMR 62C.21.1, which governs the confidentiality of tax information, through operation of Exemption (a). Similarly, as you have been advised previously, responsive records would additionally include students’ names, which would need to be manually redacted pursuant to student privacy laws, such as the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g; 34 CFR Part 99, and related state confidentiality laws (e.g., 603 CMR §23.00), operating through Exemption (a). Exemption (c) to the Public Records Law, G.L. c. 4, §7(26)(c). Finally, information about individual employees’ optional health insurance and mandatory and optional retirement deductions, are protected from disclosure pursuant to Exemption (c) . . . This statute has been interpreted as protecting intimate details of a highly personal nature about individuals. Where you are requesting information by employee name, there is no way to protect individual employees’ privacy interests in such information except by redaction. Based on the School’s response, it is unclear whether the School intends to charge for time spent redacting the records under Exemption (c). Pursuant to the Public Records Law, a fee may not be assessed for time spent redacting records unless such 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). Further, where the request was modified after the School’s December 27, 2023 response, the School may not assess a fee for the first two (2) hours of employee time used to respond to the modified request. For the reasons discussed above, I find the School 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).

Lisa Rand SPR24/0189 Page 4 February 5, 2024 Conclusion Accordingly, the School is ordered to provide a response to Ms. Costello 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: Jean Costello