Teichert, Jeanne v. Andover, Town of - Public Schools (SPR 20150824)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 30,2015 SPRlS/824 Mr. Paul Szymanski Assistant Superintendent for Finance and Administration Andover Public Schools 36R Bartlet Street Andover, MA 01810 Dear Mr. Szymanski: I have received the petition of Jeanne Teichert appealing the response of the Andover Public Schools (School) to her October 9, 2015 request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Teichert requested copies expense records of the School, including special education reports "relating to budget, enrollment and transportation." Ms. Teichert also requested copies of "invoices, warrants and related billing documents" related to School expenses for "all legal firms paid" by the schools, as well as "reports created relating to any school department legal expenses." The time period for this request is the last five fiscal years, "FY 2011 - FY 2015." Response by School, clarification by Ms. Teichert, appeal The School initially responded on October 14, 2015 by providing electronic copies of certain responsive records and a fee estimate of $2,135 for the provision of the remaining responsive records. This estimate included review by a "confidential administrator" paid a rate of $31.62 and use of "an attorney to redact information" at a rate of $215.00 per hour. In an effort to clarify her request, Ms. Teichert sent a revised request on October 15, 2015. She explained that at an October 8, 2015 meeting ofthe school committee the Chair discussed legal firm billing information that is provided in the aggregate. Ms. Teichert visits School to review records, objects to possible records withheld Subsequent to the opening of this appeal, Ms. Teichert inspected certain records including summaries of legal expenses. You also provided Ms. Teichert with summaries oflegal expenses in separate correspondences dated November 20, 2015 and November 24, 2015. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Paul Szymanski SPR15/824 Page Two December 30, 2015 Based on email dated November 30, 2015 addressed to you and an attorney on my staff, Ms. Teichert believes information has been redacted from the records she received. In addition, she indicates she has not received responsive legal invoices or warrants. Whereas Ms. Teichert continues to wish to view the requested legal invoices or warrants, I will analyze the School's fee estimate to determine if it is compliant with the Public Records Law. Fee estimate A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Regulations. See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer printout of a public record. See 950 C.M.R. 32.06(1)(a). In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 1O (a). In your October 14 fee estimate, you state that it will take "a minimum of forty (4 0) hours to gather all the requested material and additional time to review the material for any necessary redactions." Further, you state "[g]iven that the subject of your request includes invoices and billing documents related to special education, personnel and other cases, your request would have to be reviewed by an attorney to ensure compliance with privacy laws." The total estimate fee for the provision of responsive records is $2,135.00. This fee is comprised of ( 1) $1 ,265. 00 for a confidential administrator to review and retrieve information (calculated at $31.63 per hour for forty (40) hours); $860.00 for an attorney to redact exempt information (calculated at $215.00 per hour for four (4) hours); and $10.00 for fifty (50) photocopies at $.20 per page. In a telephone conversation with a member of my staff, you confirmed these are the hourly rates of the lowest paid person capable of performing the task. In your December 21 email, you provided more detail regarding the estimated amount of time need to provide responsive records. You explain that there are "3 -4 warrants per month" and that there are "approximately 1-2 legal invoices processed per warrant." As a result, there are approximately two-hundred eighteen (218) responsive invoices. You estimate it will take

Mr. Paul Szymanski SPR15/824 Page Three December 30, 2015 eleven (11) minutes of "search and process time" for each invoice. You also state the hourly rate of"an attorney to redact information" is $210.00 per hour. However, although you state responsive records may contain information "related to special education, personnel and other cases," I find the School has yet to explain how an exemption to the Public Records Law may apply to the responsive records. In addition, the School must clarify the hourly rate of the attorney that will redact information, if such redactions are necessary. Therefore, I find the School has not met its burden to justify the amount of time described in the School's October 14 fee estimate. In addition, the School must explain, with specificity, how an exemption to the Public Records Law applies to withhold any information in the records already provided to Ms. Teichert. 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 ( c); 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). Conclusion Accordingly, the School is hereby ordered, within ten (1 0) days, to provide Ms. Teichert with a revised written response to her request for records. This response, prepared in compliance with this order, the Public Records Law and its Regulations, must address each portion of Ms. Teichert's request, a statement as to records previously provided, and a statement to address remaining records to be provided. If the School maintains that any portion of the responsive records are exempt from disclosure it must provide a written explanation, with specificity, how a particular exemption applies to each record. 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 this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2). A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. n A. Williams cc: Ms. Jeanne Teichert