Karyn Currie v. Wachusett Regional School District (SPR 20240594)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 12, 2024 SPR24/0594 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.” Previous Appeal This request was the subject of a previous appeal. See SPR24/0287 Determination of the Supervisor of Records (February 8, 2024). In my February 8th determination, I found that it was unclear how the School required 40 hours to provide the responsive records, under what statutes the School intends to segregate or redact the records, and whether the School’s hourly rate is that of the lowest paid employee with the necessary skill. The School provided a response on February 14, 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, SPR24/0594, 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). 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 SPR24/0594 Page 2 March 12, 2024 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. 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 February 14th response In its prior response on January 29, 2024, the School provided an estimate of $950.00 for 40 hours of work for the purpose of “searching for, segregating, redacting, and copying responsive records.” The School stated 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.

Barry Sclar SPR24/0594 Page 3 March 12, 2024 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). In its February 14, 2024 response, the School reiterated its estimate of $950.00 for 40 hours of work and stated the following: First, the need for redaction is to prevent a prohibited disclosure of confidential student record information maintained by [the School] that is specifically exempt from disclosure under M.G.L. c. 4, § 7(26)(a). All public records that are responsive to your request will include personally identifiable information in education records/student records, which is specifically exempted from disclosure pursuant to federal and state statutes and regulations, including: the Family and Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g; the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1417(c); M.G.L. c. 71B; M.G.L. c. 71, § 34D; and 603 C.M.R. §§ 23.00 et. seq. The documents will be redacted in accordance with Champa v. Weston Public Schools, 472 Mass. 86 (2015). Secondly, the fee estimate of $950.00 is broken down as follows: The Wachusett Regional School District is a regional district that enrolls students from multiple towns. We have an approximate total enrollment of 6,854 students. The time estimate to manually search through ten (10) years of student records is thirty (30) hours. This search time includes the time needed to locate all responsive records, pull them from the files, copy them, and refile them. Segregating (locating information that must be redacted in accordance with the above laws) and then redacting the responsive records will together take an estimated ten (10) hours. All of the above will be performed by the lowest paid employee capable of performing the work, and that will be at a rate of $25.00 per hour. To sum up, $25.00/hour x 40 hours = $1,000.00. The fee estimate of $950.00 accounts for a waiver of two hours of work, in accordance with 950 CMR 32.07(2)(m). Although the School states that it would take 10 hours to redact the records, it is unclear how many records there are, or the number of minutes that the School must spend per page for the redactions. The School must clarify this matter. I encourage Ms. Currie and the School to communicate in order to facilitate producing records efficiently and affordably. Ms. Currie may wish to narrow the scope of the request 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) (a municipality shall suggest a reasonable modification of the

Barry Sclar SPR24/0594 Page 4 March 12, 2024 scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Kari Currie