Ronald Alexander v. Wellesley Public Schools (SPR 20191122)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 11, 2019 SPR19/1122 Alexandra B. Rubin, Esq. Miyares and Harrington LLP 40 Grove Street, Suite 190 Wellesley, MA 02482 Dear Attorney Rubin: I have received your petition on behalf of the Town of Wellesley-School Department (Department) seeking an extension of time to furnish copies of a requested record, or any portion thereof, as well as to charge $3 9 .18 per hour in responding to a request made by Ronald Alexander. G. L. c. 66, § lO(c), (d)(iv). As required by law, the Department furnished a copy of their petition to the requestor. Id. On May 22, 2019 and May 23, 2019, Mr. Alexander requested all emails sent by two Wellesley School Committee members from January 1, 2019 to present. Petitions to assess fees The Supervisor of Records (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 agency to comply with the request. G. L. c. 66, § lO(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 first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § lO(d)(iv). It is my determination that the request is not 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 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

Attorney Alexandra Rubin SPR19/1122 Page 2 June 11, 2019 segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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, § IO(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, § IO(d)(iv). See G. L. c. 66, § IO(d)(iii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06( 4)(g). Current Petition In your June 4, 2019 petition to this office you state, "I am writing to petition for a waiver of statutory limits on fees for responding to a public records request, as well as additional time to respond to and produce the responsive records. I request authorization to charge, at a rate of $3 9 .18 per hour, for actual time spent by an associate attorney in my office, as well as for Ms. Mahr, to: (1) segregate and redact emails and (2) prepare a log of any emails withheld on the basis of attorney-client privilege." e You note, "School Committee members often communicate about highly sensitive matters via email meaning that each of these emails must be reviewed to determine whether FERPA -which, by law would require a redacting or withholding the record - or another exemption to the Public Records Law permits withholding or redacting such emails." The June 4th petition further expresses "Ms. Mahr is the lowest paid employee capable of performing this review; the costs associated with Ms. Mahr are $87.91 per hour .. .In regard to the attorney-client information, an associate attorney in Town Counsel's office is the lowest paid employee with the requisite knowledge for reviewing documents for attorney client privilege; the

Attorney Alexandra Rubin SPR19/1122 Page 3 June 11, 2019 costs associated with the associate attorney's time are $185 per hour. After Ms. Mahr has identified emails potentially implicating the privilege, an associate attorney will perform the review, segregation, and redactions necessary for producing the requested documents. However, rather than requesting to assess fees at the actual rate that the Town will be charged for an associate or for Ms. Mahr's time, the School Department only seeks permission to charge $39.18 per hour, which is the hourly rate of Laura Ball, Ms. Mahr's Confidential Administrative Assistant." With respect to the amount of time needed to produce the records, the Department explains "it will take approximately 3 minutes, on average, to review and as necessary, redact each responsive record. Thus, with 855 potentially responsive records, it will take 42.75 hours to segregate and redact the records. The Town of Wellesley has more than 20,000 individuals. Thus, it cannot assess a fee for the first two hours of time. The total cost of responding to this request is therefore estimated to be $1,596.58." Given these records may contain confidential information under FERPA and/or attorney client privilege information, I find the Department has met its burden to explain how the request could not prudently be completed without redaction or segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § lO(d)(iv). Further, I find the Department has established how it may assess an hourly fee for the time spent to segregate and redact these requested records at $39.18. This office encourages Mr. Alexander and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § lO(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Any updated fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations. Conclusion For the reasons described above, the Department may assess a fee for the time spent to segregate and redact these requested records at $39.18 per hour. Further, I decline to opine on the Department's petition for an extension of time to produce records as the requestor has not agreed to pay the estimated fee for the provision of responsive records. If after hearing from Mr. Alexander regarding an acceptance of the estimate the Department still requires an extension of time to comply with the request or a waiver of the statutory limits on fees, the Department may file a subsequent petition. See G. L. c. 66, § 10(c ); 950 C.M.R. 32.06(4)(g). Please note, the requestor 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),

Attorney Alexandra Rubin SPR19/1122 Page 4 June 11, 2019 lOA(c). Sincerely, ~~- 0 Rebecca S. Murray Supervisor of Records cc: Ronald Alexander Cynthia Mahr