Ronald Alexander v. Wellesley, Town of (SPR 20191185)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 27, 2019 SPR19/1185 Cynthia D. Mahr Assistant Superintendent Town of Wellesley Public Schools 40 Kingsbury Street Wellesley, MA 02481 Dear Ms. Mahr: I have received the petition of Ron Alexander appealing the response of the Town of Wellesley School Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May 22, 2019 and May 23, 2019, Mr. Alexander requested all emails sent by certain Wellesley School Committee members from January 1, 2019 to the present. In a May 29, 2019 response, the Department provided Mr. Alexander with a fee estimate to search for, segregate and redact 2,952 emails. Modification ofo riginal request On May 29, 2019, Mr. Alexander modified his request to the emails sent by the individuals "from May 1, 2019 to present." The School provided Mr. Alexander with a June lih revised estimate. 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, § 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, 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

Cynthia D. Mahr SPR19/l 185 Page 2 June 27, 2019 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 (Supervisor) under a petition under G. L. c. 66, § lO(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 under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Prior petition -fees and extension of time As a result of Mr. Alexander's May 29th modification of his request, on June 4th the Department's Legal Counsel, Alexandra Rubin, Esq. of Miyares and Harrington, LLP, filed a petition with the Supervisor for approval to assess an hourly rate of $3 9 .18 to segregate and redact confidential and privileged information, and for an extension of time to complete the tasks. G. L. c. 66, § 10(c ),(d )(iv). In my June 11th determination, I found that the Department was permitted to assess an hourly fee of $39.18 for the time spent to segregate and redact the requested records. See SPR19/1122 Determination of the Supervisor (June 11, 2019). The Department's June 12, 2019 fee estimate The Department's subsequent June 12th fee estimate indicates that it has identified 855 emails that are responsive to Mr. Alexander's May 29th modified request. The Department explains its estimate is comprised of the following: 855 records x 3 minutes= 42.75 hours 42.75 hours - 2 hours= 40.75 hours (the Town has more than 20,000 individuals) The Department indicates it "arrived at this estimate by conducting a search of its email server. Each of these emails will need to be individually reviewed to determine whether the record contains non-public information." The Department further explains that based on experience redacting similar records, it is the Department's estimate that it will take 3 minutes to review and redact each potentially responsive email. Segregation and Redaction In the Department's June 4th petition and May 29th and June 12th responses, it asserts these emails of the school committee members may contain personally identifiable information which will need to be redacted from the emails prior to public disclosure. In the Department's June lih estimate, you state, "[w]hile there are some [exceptions] to FERPA, 34 C.F.R. §§ 99.30 and 99 .31, this determination must be made on a case-by-case basis. Therefore, each record must be reviewed to ensure that [personally identifiable information] is not released in violation of the law." The Department's petition and June 12th estimate cite Exemption (a) and the Family

Cynthia D. Mahr SPR19/1185 Page 3 June 27, 2019 Education Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g and 34 C.F.R. Part 99, as applicable to content within the emails, as well as the common law attorney-client privilege. G. L. c. 4, § 7(26)(a). The Department also explained that the records could contain information that is protected from public disclosure under Exemption ( c) as personnel information or private information, and Exemption (d) pertaining to on-going deliberations. G. L. c. 4, § 7(26)(c) and (d). Based on the Department's detailed estimate, and given the contents of the requested records, I find that the Department has established the estimate is in compliance with the Public Records Law and Regulations. Attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client's search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Disclosing attorney client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records "shall require, as part of the decision making process, that the agency or municipality 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." G. L. c. 66, § lOA(a). Burden of specificity - redacted or withheld records Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Therefore, the Department must provide Mr. Alexander with a detailed response to accompany the records, establishing the applicability of the exemptions claimed for the redacted or withheld records. It is my understanding that the Department will provide a privilege log to account for any withheld or redacted emails under the attorney-client privilege. The Department's privilege log

Cynthia D. Mahr SPR19/1185 Page 4 June 27, 2019 must be in compliance with both the 3-part test in Suffolk and the requirements in the Public Records Law. See Suffolk, 449 Mass. at 450 n. 9; see also G. L. c. 66, § IOA(a). This office encourages Mr. Alexander and the Department to continue to communicate to facilitate providing records more efficiently and affordably. For example, Mr. Alexander and the Department may wish to discuss providing emails with certain topics or recipients in an effort to narrow the request. See G. L. c. 66, § I O(a)(i) (the request must reasonably describe the public record sought); G. L. c. 66, § IO(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 agency 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 Accordingly, I find that the Department has met its burden in responding to Mr. Alexander's request and in providing a reasonable fee estimate for production of the records under the Public Records Law and its Regulations. I consider this administrative appeal closed. Sincerely, ~~ Supervisor of Records cc: Ron Alexander Alexandra B. Rubin, Esq., Miyares and Harrington, LLP