Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20242602)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 30, 2024 SPR24/2602 Janell Summers Records Access Officer Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Ms. Summers: I have received the petition of Open Commonwealth (“requestor”) appealing the response of the Malden Public Schools (School/District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 23, 2024, the requestor sought the following records “for the calendar years 2022, 2023 and year to date 2024”: [1.] Any and all communications containing or discussing “bryt” in any context within the Malden Public Schools, specifically including but not limited to Malden High School. [2.] Any and all applications made by or on behalf of the Malden Public Schools, specifically including but not limited to Malden High School for any “bryt” services, programming, consulting or assistance of any kind. [3.] Any and all payments and invoices for any “bryt” services, programming, consulting or assistance of any kind. [4.] Any and all documents recruiting, interviewing, and retaining staff, specifically including, but not limited to clinicians for any “bryt” programing or services within the Malden Public Schools, specifically including but not limited to Malden High School. Previous Petition This request was the subject of a previous petition from the School. See SPR24/2531 Determination of the Supervisor of Records (September 12, 2024). In my September 12th determination, I found that the School had established good cause for an extension of time, and 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

Janell Summers SPR24/2602 Page 2 September 30, 2024 that the School may assess a fee for segregation and redaction of the responsive records. Concurrent with its petition, the School responded on September 6, 2024, providing a fee estimate. Objecting to the fees, the requestor petitioned this office, and this appeal, SPR24/2602, 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. 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).

Janell Summers SPR24/2602 Page 3 September 30, 2024 Current Appeal In his appeal petition, among other things, the requestor contends that “these requested records are not for student records, rather are for the records of Malden applying for bryt services and funding, which could not possibly contain either PII/FERPA or Exemption C materials.” Please be advised that where the School has yet to produce the records, I am unable to opine on the application of any exemptions the School may cite at this time, as the contents of these records are unclear. Once records are provided, the requestor may appeal the substantive nature of the School’s response within ninety calendar days. See 950 C.M.R. 32.08(1). The City’s September 6th Fee Estimate In its September 6, 2024 response, the City provides a total fee estimate of $5,935.00, and gives the following information in support of its fee estimate: A search was conducted for @maldenps.org emails which yielded approximately 14,366 responsive records. . . . Here, the Bridge for Resilient Youth in Transition (BRYT) program is an in- school program at Malden High School that supports individual students who have fallen behind academically due to challenges with their mental health. Accordingly, the responsive records, all of which regard BRYT, likely contain personal identifying information of public school students accessing BRYT’s resources, including confidential mental health information of those students. These records are exempt from Public Records Law disclosure under Exemption (a). ... 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. At the very least, the records will need to be reviewed to determine if they contain any student information, and then any necessary redactions will need to be made. Additionally, the responsive records likely contain private information exempt from disclosure pursuant to Exemption (c) to the Public Records Law. . . . As previously stated, the responsive records, all of which regard BRYT, likely contain confidential mental health information of public school students accessing BRYT’s resources. The privacy interests of those students far outweigh any public interest in knowing such information, and thus the information is exempt from disclosure. . . . In this case, the lowest paid employee who has the necessary skill required to segregate and redact the records requested is a salaried employee whose effective hourly rate exceeds $25 per hour. In accordance with 950 CMR 37.02(2)(m)(1), you will not be charged for the first two (2) hours of those services and will only

Janell Summers SPR24/2602 Page 4 September 30, 2024 be charged at a rate of $25 per hour. . . . The District estimates that it will take one minute per record to review, segregate, and redact any exempt information. There are approximately 14,466 total responsive records which must be reviewed. As a result, the District estimates a total of 239.4 hours for the email extracts. You will not be charged for the first two hours. 237.4 hours for segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $5,935.00. The actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process. Please be advised the School previously received approval to charge for segregation and redaction, to the extent the responsive records contain the exempt information. See SPR24/2531 Determination of the Supervisor of Records (September 12, 2024). In light of the information provided in the School’s September 6th fee estimate, I find the School has met its burden to establish that it would take this amount of time to segregate or redact the responsive records. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). Conclusion As set forth above, I find the School has met its burden in responding to the request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Open Commonwealth