George P. King, Jr. v. Nashoba Regional School District (SPR 20181987)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

December 17, 2018 SPR18/1987

Kevin Freytag, Esq.

Murphy, Hesse, Toomey, & Lehane LLP 300 Crown Colony Drive, Suite 410 Quincy, MA 02169

I have received your petition on behalf of the Nashoba Regional School District (School District) seeking a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the School District furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c), § 10(d)(iv)(2). On November 26, 2018, George P. King, Jr. requested seven categories of records. The School District is petitioning to charge for categories six and seven that pertain to “communication from any attorney or staff member at Murphy, Hesse, Toomey and Lehane to” certain named individuals regarding “the ‘loans and leases,’ expressly or by inference, as reported in the so called ‘forensic audit,’ dated between June 1, 2016 and March 30, 2017.”

Fee petitions

Municipalities may not assess a fee for the first 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.

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 (Supervisor) 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 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, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in

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

Kevin Freytag, Esq. SPR18/1987 Page 2

December 17, 2018

excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. 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. Id.

Current petition

In its December 10, 2018, petition, the School District “petitions the Division of Public - Records that it be authorized to: 1.) charge a fee to segregate and redact the records sought in categories 6 and 7; and 2.) charge a fee in excess of $25.00 to segregate and redact those records.” The School District explains “[c]ategories 6 and 7, on their face, seek records that are protected by the attorney-client privilege. The School District is asserting that privilege.” The School District cites Suffolk Constr. Co. v. Div. of Captial Asset Mgmt. indicating “segregation and redaction by counsel of the records requested in categories 6 and 7 is required by law” and “a fee is necessary in order to prudently respond to categories 6 and 7.”

The School District “believes it will take approximately eight (8) hours for its attorneys to segregate the records requested in categories 6 and 7.” The School District is requesting “to charge Mr. King $240 per hour to segregate and redact the records produced in response to categories 6 and 7.” The School District explains “[t]hat hourly rate reflects the amount that this firm will charge the School District to segregate the records that are responsive to categories 6 and 7.” They estimate “it will take approximately eight (8) hours to complete necessary _ segregation and redaction.” The School District indicates it will “provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.”

I find the School District has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction, segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). In light of the

factors in G. L. c. 66, § 10(d)(iv), I find the School District may assess a fee of $75.00 per hour for attorney review.

The School District has also demonstrated that the fees are not being levied to limit, deter, or prevent access to records, nor are the fees a result of charging the requestor a premium due to poor records management practices by the School District.

Conclusion

For the reasons described above, I will allow the School District to charge for segregation fees in excess of $25 per hour for the provision of the requested records. However, this allowance is limited to the rate of $75.00 per hour. The School District must provide the records in compliance with this determination, the Public Records Law, and its Access Regulations.

Kevin Freytag, Esq. SPR18/1987 Page 3 December 17, 2018

Please note, Mr. King has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c).

Sincerely,

Rebecca S. Murray

Supervisor of Records cc: George King