Jessica Machado v. Greater New Bedford Regional Vocational Technical High School (SPR 20240517)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 4, 2024 SPR24/0517 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’s] employment, I would like those to be included as well. Prior Appeal The requested records were the subject of a prior appeal. See SPR24/0147 Determination of the Supervisor of Records (February 1, 2024). The District responded on February 15, 2024. Unsatisfied with the response, Ms. Machado petitioned this office and this appeal, SPR24/0517, 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. 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 SPR24/0517 Page 2 March 4, 2024 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 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 February 15th Fee Estimate In the District’s February 15, 2024 response, the District stated, “[t]he District declines to revise its fee estimate at this time, but offers additional clarification as to how its fee estimate was calculated...” The District’s fee estimate is $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, “... the fee assessed in the District’s initial response is a good faith estimate based on the time expected to segregate, review, and redact documents based on prior experience with processing similar requests and its superior knowledge of the records. M.G.L. c. 66, §10(b)(viii). The 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). As noted, while our firm’s hourly fee is higher than$25 per hour, that figure was used to calculate the fee estimate. Id.” The District previously advised, “[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.”

Maria Fredette SPR24/0517 Page 3 March 4, 2024 The District further stated, “[t]o calculate the fee estimate, the District ran a preliminary search through its Barracuda email archive system. That search returned approximately 15,000 responsive emails. Next, the process would involve reviewing responsive emails to determine whether the document contains any privileged information exempt from disclosure under the law such as student records under Massachusetts or federal law. M.G.L. c. 4, §7(26)(a); 20 U.S.C. § 1232g(a)(4)(A); M.G.L. c. 71, §§ 34D, 34E; 603 CMR 23.00; Champa v. Weston Public Schools, 473 Mass. 86, 91-93 (2015).” In its prior response, the District explained that redactions are necessary based upon Exemption (a) and attorney-client privilege.” In its February 15th response, the District further stated, “[t]o the extent that a document contains student records, the determination as what information may be released with redactions must be assessed on a case-by-case basis considering the request, the school and the community, and the availability to the requester of other information that may indirectly identify the student. Champa, 473 Mass. at 93. Because documents and emails containing student records cannot be disclosed, except in limited circumstances not applicable here, redactions are required by law, and must be made with someone with knowledge of state and federal student privacy laws. Should the email message require redactions, it will need to be converted from an email format to an Adobe PDF file so that the redactions can be applied accordingly. Depending on the length of the document and the number of redactions needed, if any, this process can take up to five minutes per document. As such, the District declines to reduce its fee estimate based on the process described ...” Current appeal In her appeal, Ms. Machado asserted that the fee being requested, “… is causing an unnecessary financial burden to the school district and its taxpayers for the excessive use of a legal team to fight a journalist for access to records that I am legally allowed to obtain.” Waiver of fees In her petition, Ms. Machado contends she is entitled to a waiver of fees because she believes that it is an unnecessary financial burden to the school district and its taxpayers. Ms. Machado is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. 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. It is unclear if the 35 hours includes time for search as well as segregation and redaction. Further, it is unclear why the District needs 5 minutes per document. It is unclear if the 5 minutes is per page or per record or email. The District must clarify these matters. For the reasons discussed above, I find the District must provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d).

Maria Fredette SPR24/0517 Page 4 March 4, 2024 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