Abbas Khan v. Norfolk, Town of - Public Schools (SPR 20242959)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 4, 2024 SPR24/2959 Dr. Ingrid Allardi Superintendent of Schools Norfolk Public Schools 70 Boardman Street Norfolk, MA 02056 Dear Dr. Allardi: On October 30, 2024, this office received your petition on behalf of the Norfolk Public Schools (School/District) 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, Abbas Khan. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 23, 2024, Mr. Khan requested “details for all purchases from [your] record keeping system: Vendor number or Vendor ID, Vendor name, Identifier for each purchase, such as purchase order number (PO#) or, alternatively, an invoice or check number, Purchase date, Line item details or description of each purchase, Line item quantity, Line item price from 07/01/2020 to date for all schools under [your] jurisdiction.” 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 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 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 SPR24/2959 Page 2 November 4, 2024 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 that “it be permitted to charge $25 per hour to produce, review and potentially redact records that are responsive to the request” and provides the following in support of its request: [A] review of the 785 page report indicates that redactions may need to be made pursuant to these exemptions. … [F]irst, the request included confidential student record information which is not

Dr. Ingrid Allardi SPR24/2959 Page 3 November 4, 2024 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 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. Sincerely, Manza Arthur Supervisor of Records cc: Abbas Khan