Gregory D. Henning, Esq. v. Framingham State University (SPR 20250264)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 3, 2025 SPR25/0264 Ann S. McDonald, Esq. Records Access Officer General Counsel and Chief of Staff Framingham State University 100 State Street Framingham, MA 01701 Dear Attorney McDonald: On January 28, 2025, this office received your petition on behalf of Framingham State University (University) 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 University furnished a copy of the petition to the requestor, Attorney Gregory D. Henning, of Henning Strategies. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 10, 2025, Attorney Henning requested the following “records from each of the past four school years, beginning in August 2022 to today”: [1] All Memorandum(s) of Understanding between Framingham State University (FSU) and Framingham Public Schools (FPS) for its Partners in Learning (PEL) preschool program[;] [2] All documents or communications concerning or related to the mous between FSU and FPS about the PEL preschool program[;] [3] Any and all documents and records concerning and/or related to the total amount of grant funding used to fund the PEL program at Framingham State University's Child Development Lab, including, but not limited to grant award letters and statistical tabulations[;] [4] Any and all documents and record(s) that reflect the number of certified special education teachers in FSU's PEL preschool program, broken down by classroom and employer (e.g. FSU, FPS, etc.)[;] [5] Communication(s), written or electronic, from the Massachusetts Department 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

Ann S. McDonald, Esq. SPR25/0264 Page 2 February 3, 2025 of Early Education and Care (EEC) notifying FSU of any audit, compliance review, or investigation into its Jeanne M. Canelli Child Development Lab or its Early Childhood Center[;] [6] Communications, written or electronic, from EEC notifying FSU of the outcome of any audit, compliance review, or investigation into its Jeanne M. Canelli Child Development Lab or its Early Childhood Center[;] [7] Communication(s), written or electronic, from the Massachusetts Department of Elementary and Secondary Education (DESE) notifying FSU of any audit, certification, compliance review, or investigation into its undergraduate or graduate education program(s)[;] [8] Communication(s), written or electronic, from DESE notifying FSU of the outcome of any audit, certification, compliance review, or investigation into its undergraduate or graduate education program(s)[;] [9] All communications from teachers or administrators in the PEL/FPS Preschools at Framingham State University concerning problematic (e.g. disruptive or dangerous) behavior from students[;] [10] Any and all injury reports made and/or submitted by FSU, FPS, or its staff from the PEL program. Petition to assess fees – Agencies A fee shall not assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records (Supervisor) under a petition. G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). 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 first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination 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)

Ann S. McDonald, Esq. SPR25/0264 Page 3 February 3, 2025 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies 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. 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)(ii); 950 C.M.R. 32.06(4). Conclusion The University submitted its petition on January 28, 2025, more than ten business days after receipt of the request. In light of the fact that the University has not demonstrated that it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. G. L. c. 66, § 10(d)(iv); 950 C.M.R. 32.06(4)(g). Sincerely, Manza Arthur Supervisor of Records cc: Gregory D. Henning, Esq.