Ronald Alexander v. Wellesley, Town of - Public Schools (SPR 20191350)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murrny Supen,isor of Records July 12, 2019 SPR19/1350 Ivria Glass Fried, Esq. Miyares and Harrington LLP 40 Grove Street, Suite 190 Wellesley, MA 02482 Dear Attorney Fried: I have received your petition on behalf of the Town of Wellesley School Department (Department) seeking permission to charge $39.18 per hour in responding to a request made by Ronald Alexander. G. L. c. 66, § lO(c), (d)(iv). As required by Jaw, the Department furnished a copy of their petition to the requestor. ld. 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. It is my understanding that Mr. Alexander modified his request on June 30, 2019. Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that I) 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, § JO(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, § lO(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 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 segregation or fee in excess of$25 per hour; 2) the amount of the fee is reasonable; and 3) the 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 Fried SPR19/1350 Page 2 July 12, 2019 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, § lO(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 ofa 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, § 1O (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 Supe1visor of Records 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 of Records 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). 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 its petition to this office dated July 5, 2019 the Department states, "I am writing to petition for a waiver of statutory limits on fees for responding to a public records request. I request authorization to charge, at a rate of $39.18 per hour, for actual time spent by Ms. Mahr to segregate and redact the requested emails ... the School Department estimates that this review will take approximately 25.5 hours to complete." The Department notes, "[i]t is likely that the School Department may withhold many of these emails, in full or in part, because they are subject to one or more of the exemptions to the Public Records Law." The Department cites Exemption (c) claiming the two identified indivuals "may communicate via email regarding the performance of an employee within the school department. Exemption (c) would likely protect from release any information that would be helping in making an employment decision." Fmiher, "[a]s elected officials, the public may seek to communicate with their elected official about highly private issues that are affecting their students. It is not uncommon for Committee members to receive information about a particular student that, if disclosed, would constitute an unwarranted invasion of privacy." In addition the Department cites Exemption (d) claiming, "[a]s School Committee members, it is possible that

Attorney Fried SPR19/1350 Page 3 July 12, 2019 the potentially responsive records could contain information pertaining to on-going deliberations that if released could taint the deliberative process." The Department notes, "[t]he essential fact here is not that these exemptions apply, but rather, that School Committee members often communicate about highly sensitive matters via email meaning that each of these emails must be reviewed to determine whether FERP A - 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 School Department cannot merely provide Mr. Alexander with all of the potentially responsive records. The School Department must perform this necessary review." With respect to the amount of time needed to produce the records, the Department explains "that it will take approximately 3 minutes, on average, to review and as necessary, redact each responsive record. Thus, with 510 potentially responsive records, it will take 25.5 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 $920. 73." The Department further posits that, "the fee represents an actual and good faith representation to comply with the request. The fee is also necessary because the Department cannot properly respond to the request without reviewing and redacting the records. It is likely that the records include information protected by FERP A, pending policy determinations, and highly sensitive privacy or personnel information." Given these records may contain confidential information under FERP A and/or other legal privilege exempting the material from public disclosure under the Massachusetts Public Records Law, 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, § IO(d)(iv). Further, I find the Department has established how it may assess a fee for the time spent to segregate and redact these requested records at $39 .18 per hour. 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, § 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 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.

Attorney Fried SPR19/1350 Page 4 July 12, 2019 Co11c/11sio11 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. 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), lOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ronald Alexander Cynthia Mahr