Lorraine Romasco v. Nashoba Regional School District (SPR 20192563)

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

Rebecca S, Murray Supervisor of Records

January 3, 2020 SPR19/2563

Kevin S. Freytag, Esq.

Nashoba Regional School District 50 Mechanic Street

Bolton, MA 01740

Dear Attorney Freytag:

Ihave received your petition on behalf of the Nashoba Regional School District (District) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10(d)(iv). As required by law, the District furnished a copy of this petition to the requestor. G, L. c. 66, § 10(d)(iv). On December 13, 2019, Lorraine Romasco requested several categories of records involving the investigation of a specific school employee including:

1. Ball Consulting/Public Relations Group to understand the scope of the work they've > been hired to do, for whom, and who their main contact(s) is/are:

a. All copies of RFPs for public relations/communication support (not sure that this is required by law but including in case there was a request for info), any resultant contract drafts and final contract

b. All communication between the District Administration (Superintendent,

Assistant Superintendent) and the firm

c. All communication between the School Committee (including the Chair) and the firm

d. Who are the District and School Committee contacts interacting with the firm 's agents?

e. All communication referencing the firm and its work and findings, discussions of the work they would be performing or are performing with any of the above entities

f. All financial commitments (paid or upcoming)

2. Independent counsel scope/agreements on the work he is doing to investigate the administration's role in events concerning Dorothy Veracka a. Are they are on a retainer, is this an hourly fee effort or is it another arrangement? What is the financial arrangement and cost incurred to date? Please also identify if there are outstanding fees for this work? b. b. Correspondence between independent counsel and the School Committee Chair or any other district or School Committee representative.

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 S. Freytag, Esq. SPR19/2563 Page 2 January 3, 2020

c. When is the work expected to be completed. If December 18th, to a extent possible, please provide a copy of the findings.

d. Who are the District and School Committee contacts interacting with the independent counsel?

e, What is the commitment to sharing the findings with the community?

Petition to Assess Fees

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).

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. 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 this request was not made 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; 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.

Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records, 950 C.M.R. 32.06(4)(g).

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)(1).

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

Kevin S. Freytag, Esq. SPR19/2563 Page 3 January 3, 2020

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, § 10(d)(iv). See G. L. c. 66, § 10(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 dated December 30, 2019, the District requests approval to assess fees for costs associated with responding to a public records request. The District affirms that “some of the communications may be protected by attorney-client privilege.” The District anticipates that this review and the creation of a privilege log will take “1.5 hours of attorney review.” Furthermore, “a good faith fee estimate to produce the remaining records sought in the Request is $62.50 (for 2.5 hours of search time) plus $112.50 (for 1.5 hours of attorney review) for a total good faith estimate of $175.00.”

Conclusion

In light of the District’s petition, I find the District has met its burden to explain how the response could not be prudently completed without the redaction or segregation. To the extent the responsive records contain the exempt information as described above, the District may assess a fee for segregation and redaction. This office encourages Ms. Romasco and the District to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Any fee estimate by the District must be in compliance with this determination, the Public Records Law, and its Access Regulations.

Please note, Ms. Romasco 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), L0A(c).

Alenen

Rebecca S. Murray Reliecco. Muay

Supervisor of Records

cc: Lorraine Romasco