Megan Hamilton-McKeon v. Old Rochester Regional School District (SPR 20240383)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 20, 2024 SPR24/0383 Michael S. Nelson Superintendent Old Rochester Regional School District 135 Marion Road Mattapoisett, MA 02739 Dear Superintendent Nelson: I have received the petition of Megan Hamilton-McKeon appealing the response of the Old Rochester 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 22, 2024, Ms. Hamilton-McKeon requested the “contents of [her] emails.” The School provided a response on January 22, 2024, which included a fee estimate. Unsatisfied with the response, and objecting to the fees, Ms. Hamilton-McKeon petitioned this office and this appeal, SPR24/0383, 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

Superintendent Michael S. Nelson SPR24/0383 Page 2 February 20, 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 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 ($.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 22nd response In its January 22, 2024 response, the School provided a fee estimate of $6,700.00 for 268 hours of work at $25.00 an hour. The School explains that redactions to the records will likely have to be made under Exemption (c) of the Public Records Law and FERPA under Exemption (a) of the Public Records Law. Additionally, the School breaks down the fee estimate as follows: In the most-recent decennial U.S. Census, the member towns of the Old Rochester Regional School District (Marion, Mattapoisett, and Rochester) had a total population of 17,572 and, as such, the District may charge a fee for all time involved in responding to your request… Given the nature and complexity of the exemptions and privileges cited above, and the wide-ranging and private nature of the related information, the lowest paid employee of the District who could continue the search for, compilation, review, segregation, redaction and reproduction of records and make judgments as to which information is public

Superintendent Michael S. Nelson SPR24/0383 Page 3 February 20, 2024 and which information is exempt and must be redacted would be myself, as Records Access Officer, and my annual salary exceeds $25.00 per hour. As a result, any time for completing this process would be billed to you at the maximum rate of $25.00 per hour. Based on the breadth of your request, the complexity of the applicable exemptions, and the sheer number of records and sources of records, I estimate that it will take an average of approximately two (2) minutes per page to fully search for, compile, review, segregate, redact, and reproduce each record. For the approximately 8,060 emails, which the District has identified to date as responsive to your request, it would take an estimated 268 hours to complete the District’s search for, compilation, review, segregation, redaction and reproduction of those records, for a total fee of approximately $6,700.00. If the aforementioned initial fee is amenable to you, please provide my office with a check made out to the Old Rochester Regional School District in the amount of $6,700 and note on the check that it relates to the “Hamilton-McKeon PRR 01.22.2024”. After receipt of this payment, we will proceed with the District’s search for, compilation, review, segregation, redaction and reproduction of responsive records in the manner described above. Current Appeal In her appeal petition, Ms. Hamilton-McKeon states, “[t]he basis as to what is at issue regarding the request sent is that accessing the emails is necessary regarding the complaint brought and an upcoming Civil Action, etc. In addition, Superintendent Nelson writes of a .org email when the email for the majority of my tenure was a “mec” email (mmckeon@orr.mec.edu). Also at issue is the fee as it must be reasonable…” Although the School has estimated that the process of compiling, reviewing, and preparing requested records requires 268 hours to produce responsive records, it is not clear from the School’s estimate how much time is allocated to search, and how much time is allocated for segregation and/or redaction of the records. Further, the School must provide additional information regarding the tasks involved in producing these records. Accordingly, the School must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Although the School claims that it is assessing a fee for redactions under Exemptions (a) and (c), it is unclear how the School can assess a fee for redactions under Exemption (c) in this matter. Under 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). I am not aware that the School has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, although the School may assess a fee for redactions required by law as in

Superintendent Michael S. Nelson SPR24/0383 Page 4 February 20, 2024 Exemption (a), it is uncertain whether the fees include time to redact records under Exemption (c). The School must clarify this. I encourage Ms. Hamilton-McKeon and the School to communicate in order to facilitate producing records efficiently and affordably. Ms. Hamilton-McKeon may wish to 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 School 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, the School is ordered to provide Ms. Hamilton-McKeon with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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: Megan Hamilton-McKeon