Megan Hamilton-McKeon v. Old Rochester Regional School District (SPR 20242149)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 9, 2024 SPR24/2149 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). From June 17, 2024 through June 26, 2024, Ms. Hamilton-McKeon made the following six records requests: [1.] … all notes, records, documents, correspondence, reports, video/audiotapes, interviews and/or emails/texts between [three named individuals] regarding my report and [a named individual]’s report of a student calling me the C-word, etc. The situation also included an irate parent who burst into the Library… [2.] … all referrals, phone records and logs, notes, records, documents, correspondence, reports, video/audiotapes, interviews and/or emails/texts between [named individuals] regarding my report of: a male student throwing a chair across the downstairs history classroom, etc. [3.] … all notes, records, documents, correspondence, reports, video/audiotapes, interviews and/or emails/texts between [named individuals] regarding my report of a male student in the personal space of a female student multiple times that looked like sexual harassment… [4.] … all notes, records, documents, correspondence, reports, video/audiotapes, interviews and/or emails/texts between [named individuals] regarding my report(s) of: Safety Concerns reported and that a bullying report was not received… [5.] … all notes, records, documents, correspondence, reports, video/audiotapes, interviews and/or emails/texts between [named individuals] regarding my report(s) of: Sexually Explicit Comments on Online Teacher Page from multiple students that was ignored[.] 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 SPR24/2149 Page 2 August 9, 2024 [6.] all notes, records, documents, correspondence, reports, video/audiotapes, interviews and/or emails/texts between [named individuals] regarding my report(s) of: A Male Student Teacher’s Inappropriate Sexual Remarks About My Female Students… The School provided a response on July 2, 2024, providing a fee estimate. Unsatisfied with the response, Ms. Hamilton-McKeon petitioned this office and this appeal, SPR24/2149, 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. 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

Superintendent Michael S. Nelson SPR24/2149 Page 3 August 9, 2024 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 July 12th response In its July 12, 2024 response, the School provided a fee estimate of $2,500.00 for 100 hours of work at $25.00 an hour. The School explains its fee estimate as follows: Because we are a public school district, searches of our email system often return emails about students, particularly when there are few limitations on the scope of a search, so we must always review records to ensure that no student record information is contained in them. In addition, your request specifically seeks information related to incidents involving students. As such, we anticipate many of the responsive records will contain and/or constitute student record information based on the scope of the search. Information about a particular student and information which identifies or could be used to identify a particular student is exempt from public disclosure pursuant to M.G.L. c.4, §7(26)(a), which exempts 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), and the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. §1232g… The email search results are also likely to include and/or constitute information about employees and/or personnel matters exempt from public disclosure under M.G.L. c.4, §7(26)(c)… In addition, the email search results may also include additional private information exempt under the privacy exemption of M.G.L. c.4, §7(26)(c)… Further, personal email addresses and other contact information that may be contained in any potentially responsive records must be redacted as exempt pursuant to M.G.L. c.4, §7(26)(a), which exempts from public disclosure records which are specifically or by necessary implication exempted from disclosure by statute, and M.G.L. c.66, §10B and M.G.L. c.150E, §5A(d), which provide that a public employee’s home/personal addresses, email address, and telephone numbers and date of birth are not public records, as well as pursuant to M.G.L. c.4, §7(26)(c)… This personal contact information may also be exempt pursuant to M.G.L. c.4, §7(26)(o) or (p), to the extent applicable. Pursuant to Exemption (e), the personal notes of District employees are exempt from disclosure and will be withheld…

Superintendent Michael S. Nelson SPR24/2149 Page 4 August 9, 2024 [Ms. Hamilton-McKeon’s] request also seeks email communications involving school administrators and/or officials who are likely to have communicated with the District’s legal counsel. To the extent responsive records may include materials created by legal counsel and communicated to the District as its client or other information which is privileged as attorney-client communications… Given the scope of [Ms. Hamilton-McKeon’s] requests and the employees from whom records are sought, we expect additional exempt information may be discovered during the course of review of the potentially responsive records, including without limitation union communications (a), 51A reports (a), intellectual property (a), executive session materials (a), attorney work product or other deliberative materials (d), investigatory materials (f), tests/assessments (l), and/or security information (n). Additionally, the School breaks down its 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, privileges, and confidentiality requirements 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 a member of the District’s IT department and/or central office staff, all of whom are compensated at rates exceeding $25.00 per hour. As such, any further time spent completing the response process will be charged at the maximum rate of $25.00 per hour… Based on the District’s experience responding to public records requests similar to yours, and the old age and varying type of records you have requested, we estimate it will take approximately 3 hours per request to complete the search and compilation process, which will include formulating and running email searches, reviewing cell phone records, checking every physical and/or digital file in which a responsive record may be located, reviewing archives, and downloading/ saving/copying the records to a single file. Thus, for the 6 requests listed above, we estimate it will take 18 hours to complete the search and compilation process. After the search and compilation process is completed, we will then have to segregate and redact these records. Because of the nature of these records and for the reasons described above, we anticipated that virtually all segregation and redaction time will be required by law. Because of the breadth of [Ms. Hamilton-

Superintendent Michael S. Nelson SPR24/2149 Page 5 August 9, 2024 McKeon’s] request and the lack of substantial limitations on the scope of the search the District must complete, we expect there will be tens of thousands of potentially responsive records, which will vary in page length from 1 to many pages. It is difficult to formulate a fee estimate prior to conducting a search and compilation of records pending your payment of the fee, but we currently estimate that for the 6 requests listed above, the segregation and redaction process will take an additional 80 hours total to complete by manually reviewing each record to determine whether it is in fact responsive and redacting any exempt information with the labeling and explanation required by law. After this process is complete, all final documents must be saved to another file for production to [Ms. Hamilton-McKeon] and converted and reproduced to [her] in a format compliant with applicable law, which we estimate will take an additional 2 hours total. Based on the foregoing, it would take an estimated total additional 100 hours of total employee time to complete the District’s search for, compilation, review, segregation, redaction, and reproduction of all requested records, for a total initial fee of $2500.00 (100 hours x $25/hour). Current Appeal In her appeal petition, Ms. Hamilton-McKeon states, “[t]he basis as to what is at issue(s) regarding the request sent is that accessing the emails is necessary regarding the MCAD complaints brought that were ignored, etc… Additionally, what is included was emailed after the 10 day timeframe and covers up crimes such as this, etc.” Reasonableness of the fee estimate The Town’s fee estimate response is timely. Ms. Hamilton-McKeon sent her first records request to the Town on June 17, 2024. Where the tenth business day to provide a response was July 2, 2024, as June 19, 2024 was a holiday, and the Town provided a response on July 2, 2024, I find the School may assess a fee for these records requests. Where the School provided a response within 10 business, it is necessary to review the reasonableness of the School’s fee estimate. Although the School has estimated that it would take 18 hours to complete the search and compilation process, it is unclear why the School requires this many hours to search for and compile the records. Additionally, the School estimates that it will take 80 hours to segregate and redact the records. However, it is unclear the number of pages that the School intends to segregate or redact, nor the number of minutes the School requires to redact each page of the records. Accordingly, the School must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable).

Superintendent Michael S. Nelson SPR24/2149 Page 6 August 9, 2024 Also, although the School states that “virtually all segregation and redaction time will be required by law” it also claims that records may be redacted under Exemptions (c), (d), (e), (f), (l), (n), (o), and (p) of the Public Records Law. Consequently, the School must confirm that it is only charging for redactions required by law or under attorney-client privilege as it is unclear how the School can assess a fee for redactions under Exemptions (c), (d), (e), (f), (l), (n), (o) and (p) 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) and under the attorney client privilege, it is uncertain whether the fees include time to redact records under Exemptions (c), (d), (e), (f), (l), (n), (o) and (p). The School must clarify this. In its fee estimate, the School states, “. . . all final documents must be saved to another file for production to [Ms. Hamilton-McKeon] and converted and reproduced to [her] in a format compliant with applicable law, which we estimate will take an additional 2 hours total.” Based on the School’s response, it is uncertain how it can assess a fee for time to save the records to another file and time to convert the records under G. L. c. 66, § 10(d)(iii). The School must clarify how these tasks constitute time to search for, compile, segregate, redact, or reproduce records. 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 SPR24/2149 Page 7 August 9, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Megan Hamilton-McKeon