Karyn Currie v. Wachusett Regional School District (SPR 20240287)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 8, 2024 SPR24/0287 Barry Sclar Director of Technology and Communication Wachusett Regional School District 1745 Main Street Jefferson, MA 01522 Dear Mr. Sclar: I have received the petition of Kari Currie appealing the response of the Wachusett Regional School District (School/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. Currie requested “all settlement agreements for the past ten years between Wachusett Regional School District and any student (or their representatives), with student identifications redacted.” The School provided a response on January 29, 2024, which included a fee estimate. Unsatisfied with the School’s response, and objecting to the fees, Ms. Currie petitioned this office and this appeal, SPR24/0287, 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

Barry Sclar SPR24/0287 Page 2 February 8, 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 29th response In its January 29, 2024 response, the School provides an estimate of $950.00 for 40 hours of work for the purpose of “searching for, segregating, redacting, and copying responsive records.” The School states the following: Please note, we have approximately 1,100 Special Education students at present and have graduated hundreds more over the past ten (10) years. We maintain organized files for all of those students. However, each one of those student files would have to be examined in order to determine whether or not they contain documents responsive to your request. We estimate that searching for, segregating, redacting, and copying responsive records will total approximately 40 hours of employee time. In accordance with 950 CMR 32.07(2)(m), the District’s first two (2) hours of employee time is waved. Therefore, a good faith estimate of the fee for producing the records responsive to your request is $950.00 (38 x $25.00/hour).

Barry Sclar SPR24/0287 Page 3 February 8, 2024 Based on the School’s response, it is unclear how the School requires 40 hours to provide the responsive records. The School must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to “searching for, segregating, redacting, and copying responsive records.” See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Under the Public Records Law, 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. G. L. c. 66, § 10(d)(iii). 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). Consequently, the School must explain whether its hourly rate is that of the lowest paid employee with the necessary skill. Additionally, it is unclear under what statutes the School intends to segregate or redact the records. Pursuant to 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). The School must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. 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). Conclusion Accordingly, the School is ordered to provide Ms. Currie 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Kari Currie