Megan Hamilton-McKeon v. Old Rochester Regional School District (SPR 20240689)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 19, 2024 SPR24/0689 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.” Prior Appeal This request was the subject of a prior appeal. See SPR24/0383 Determination of the Supervisor of Records (February 20, 2024). In my February 20th determination, I found that the School must provide further details regarding its fee estimate and that it was unclear how the School could assess a fee for redactions under Exemption (c). The School provided a response on March 4, 2024. Unsatisfied with the response, Ms. Hamilton-McKeon petitioned this office and this appeal, SPR24/0689, 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. 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 SPR24/0689 Page 2 March 19, 2024 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 March 5th response In its March 5, 2024 response, the School provided further explanation regarding its 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. In its January 22nd response, the School broke 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

Superintendent Michael S. Nelson SPR24/0689 Page 3 March 19, 2024 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 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. . . . In its March 5th response, the School states: In regards to the email address mmckeon@orr.mec.edu, the District no longer maintains these records as only seven years worth of data is maintained by the MEC archive server. In 2016, the District moved to @oldrochester.org for all District email addresses and maintains these records. The fee estimate includes all emails to and from your @oldrochester.org email address. The fee also includes redactions required by law. This includes information about a particular student and information which identifies or could be used to identify a particular student is exempt information pursuant to M.G.L. c.4, §7(26)(a), which exempts from public disclosure all information specifically or by necessary implication exempted from disclosure by statute, with the relevant statutory authority being M.G.L. c.71, §§34D and 34E, as implemented through 603 CMR 23.07(4), which exempt student record information from disclosure to third parties; the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. §1232g, which exempts education records; and also pursuant to M.G.L. c.4, §7(26)(c), which exempts from disclosure information the disclosure of which may constitute an unwarranted invasion of personal privacy. This fee also includes the privacy clause of Exemption (c) which is applied only after application of a balancing test to determine whether the individual’s privacy interest in the information outweighs the public interest served by disclosure. A records custodian must review each email to determine exemption. In order to facilitate producing records efficiently and affordably, please narrow the parameters or include applicable time periods or factors (such as names, keywords, subject matters) to enable the search to be processed.

Superintendent Michael S. Nelson SPR24/0689 Page 4 March 19, 2024 Current Appeal In her appeal petition, Ms. Hamilton-McKeon states, “[the School]’s response is not specific, for example it does not state the number of emails to and from the mmckeon@orr.mec.edu email in archive. The number of emails referenced regarding the .org email is provided from an account used only in the last year of tenure in the 2016/17 school year. Seventeen years were utilized with other accounts, the mec account being a primary account.” Although the School has estimated that it requires 268 hours to produce responsive records, it is not clear from the School’s estimate why it requires “. . . an average of approximately two (2) minutes per page to fully search for, compile, review, segregate, redact, and reproduce each [email].” The School must provide additional information regarding the contents of the emails. 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 remains 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 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.

Superintendent Michael S. Nelson SPR24/0689 Page 5 March 19, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Megan Hamilton-McKeon