Nicole Neily v. Norfolk, Town of - Public Schools (SPR 20242000)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 18, 2024 SPR24/2000 Dr. Ingrid Allardi Superintendent of Schools Norfolk Public Schools 70 Boardman Street Norfolk, MA 02056 Dear Dr. Allardi: On July 12, 2024, this office received your petition on behalf of the Norfolk Public Schools (School/District) seeking an extension of time to produce records and requesting permission to assess fees for time spent segregating and redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the School furnished a copy of the petition to the requestor, Nicole Neily. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On July 1, 2024, Ms. Neily requested “records in the possession of the following Norfolk Public Schools personnel . . . between the dates of February 1, 2024 and June 28, 2024 that contain the terms: ‘Newcomer’, ‘Migrant’, ‘SLIFE’.” Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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

Dr. Ingrid Allardi SPR24/2000 Page 2 July 18, 2024 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition, the School requests “an additional 25 business days to respond to this request” and provides the following information in support of its request: [The School] makes this request for additional time because the employee who will perform the search, segregation and redaction process has many other responsibilities, which [they] cannot ignore. … [A] review of the 2800 records indicates that redactions many [sic] need to be made pursuant to these exemptions. Each record needs to be reviewed to determine whether there is any information that is exempt from disclosure contained within. In light of the need to collect, segregate and examine the records, as well as the capacity of the School to produce the records without an extension, the School has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The School is granted an extension of 25 business days. Petition to assess fees – Municipalities The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve

Dr. Ingrid Allardi SPR24/2000 Page 3 July 18, 2024 a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my understanding that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (two) 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 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). Petition to Assess Fees In its petition, the School requests “it be permitted to charge $25 per hour to search for, segregate and potentially redact records that are responsive to the request” and provides the following in support of its request: [A] review of the 2800 records indicates that redactions many [sic] need to be made pursuant to these exemptions.

Dr. Ingrid Allardi SPR24/2000 Page 4 July 18, 2024 … [F]irst, the request included confidential student record information which is not subject to disclosure under the Public Records Law.…[A]s a result, these records are exempt from disclosure pursuant to Exemption (a) because, as noted by Champa, state and federal regulations compel the District to protect education records from disclosure. Specifically [they] are protected by the Federal Education Rights Privacy Act, Massachusetts General Law, Chapter 71, Section 34A to 34H, and 603 CMR 23.00 et. seq. Please be advised, records custodians may assess fees for time spent segregating or redacting records where such segregation or redaction is required by law. See 950 C.M.R. 32.07(2)(d) (stating that fee for segregation or redaction is permissible when approved by Supervisor or when required by law). Where the School only seeks to assess fees pursuant to Exemption (a) of the Public Records Law and FERPA, which is required by law, I find it unnecessary to opine on whether the School may assess fees for segregating and redacting the records. Conclusion As described above, I find that the School has established good cause for a time extension of 25 business days. In light of the above, it is unnecessary to opine on the School’s petition for permission to charge for time spent segregating or redacting responsive records required by law. Please note, Ms. Neily has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Nicole Neily