Megan Hamilton-McKeon v. Old Rochester Regional School District (SPR 20241028)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 17, 2024 SPR24/1028 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 Appeals This request was the subject of prior appeals. See SPR24/0383 Determination of the Supervisor of Records (February 20, 2024) and SPR24/0689 Determination of the Supervisor of Records (March 19, 2024). In my March 19th 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 April 2, 2024. Unsatisfied with the response, Ms. Hamilton-McKeon petitioned this office and this appeal, SPR24/1028, 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

Superintendent Michael S. Nelson SPR24/1028 Page 2 April 17, 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 responses 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) and Family Educational Rights and Privacy Aact (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

Superintendent Michael S. Nelson SPR24/1028 Page 3 April 17, 2024 involved in responding to [Ms. Hamilton-McKeon’s] 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 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 [her] 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. In its April 2nd response, the School states: The District provided [Ms. Hamilton-McKeon] with a fee estimate for the time required to search for, compile, segregate, redact, and reproduce records responsive to your request, estimating that it would take approximately 2 minutes per page at $25 per hour, for a total fee of approximately $6,700.00. The Supervisor requests clarification as to why the District estimates 2 minutes per page, and whether the District’s fee includes segregation/redactions exclusively under Exemption (c). To clarify, the District estimates that it would take 2 minutes per email, not per page, and the fee has in fact been calculated on the basis of 2 minutes per email. Emails on the District’s system will vary in page length from one to many pages, depending on the content of the email and the number of replies and forwards in the email thread. Before producing any of the emails that have been located in our search, the District must compile, segregate, redact, and reproduce these records. This will involve without limitation saving the records already located to a single

Superintendent Michael S. Nelson SPR24/1028 Page 4 April 17, 2024 file, manually reviewing each record to determine whether it is in fact responsive, manually reviewing each record to determine what portions are subject to redaction or withholding by law, redacting any exempt information with the labeling and explanation required by law, and then saving this document to another file for production to you. Although this will be a fluid process and may vary for each particular record given that they will vary in length, it will essentially be broken down into a search/compilation step, a segregation/redaction step, and a reproduction step, because we would search/compile at the same time and segregate/redact at the same time… We estimate the time will be comprised on average of approximately 5% compilation time, 80% segregation time, 10% redaction time, and 5% reproduction time for each record. Based on the District’s extensive experience responding to records requests for emails, using the process described in this letter, and considering the applicable exemptions and time needed for redaction of this type of information, and the number of records, the District’s good faith estimate is that this process will take on average 2 minutes per email. Given that [Ms. Hamilton-McKeon was] employed as an educator in the District and [her] emails are maintained by the District, a public school, they are likely to contain extensive education/student record information that is confidential under FERPA and state law and must be redacted under Exemption (a), and it is also likely that some of these emails will also contain other information that is confidential by law include 51A reports, union communications and personal contact information. As such, we anticipate nearly [sic] of the segregation time and redaction time will be for information that is covered by Exemption (a) and is required by law; however, to the extent there are any segregation/redactions not required by law, the District will not charge for the related segregation/redaction time. Much of the same information that is confidential by statute and therefore exempt under Exemption (a) would additionally be covered under Exemption (c) because confidential information is also typically private, but the District will not charge a fee for information covered exclusively by Exemption (c). This does not change the fee estimate, as the primary reason for reviewing each email and the bulk of the redactions will be for Exemption (a) as explained above. Finally, we note that [Ms. Hamilton-McKeon] requested a specific search, i.e., the contents of [her] emails, without additional information that would narrow the parameters. It is unclear whether there are any particular records from this set of more than 8000 emails that would satisfy [her] request. As such, it is not clear to us whether there is any way to facilitate providing requested records more efficiently and affordably, and we are not able to offer any assistance in that regard without additional information. However, [Ms. Hamilton-McKeon is] welcome to narrow the parameters or include applicable time periods or factors to enable the search to be processed if you would like an updated response.

Superintendent Michael S. Nelson SPR24/1028 Page 5 April 17, 2024 Current Appeal In her appeal petition, Ms. Hamilton-McKeon states, “[t]he school has not addressed the ‘mec’ emails in archive server(s) of which there are nearly 17 years in that and other accounts necessary. The “.org” emails were changed over only in my last year of employment. The school must provide additional information regarding the contents of the emails see G.L. c66 § 10 (d) (iv) regarding the fee and the reason, etc. It remains unclear how they are assessing the time and fee for redactions. These must include not only the .org but also any .mec email addresses.” In its response, the School indicated that it “no longer maintains these records as only seven years worth of data is maintained by the MEC archive server[.]” However, it is unclear whether the School has access to these records and if the School’s fee estimate includes the seven years worth of data maintained on the archive. The School must clarify this matter. In its response, the School suggests that “[Ms. Hamilton-McKeon is] welcome to narrow the parameters or include applicable time periods or factors to enable the search to be processed if you would like an updated response.” In light of the School’s response, 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 of the request 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