Ronald Alexander v. Wellesley Public Schools (SPR 20200071)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 17, 2020 SPR20/0071 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 law, the Department furnished a copy of their petition to the requester. Id. On January 7, 2019, Mr. Alexander requested "to inspect any and all email messages between WPS Superintendent David Lussier and Fiske Principal Rachel McGregor during the month of May 2016." 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 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, § 1O (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 SPR20/0071 Page 2 January 17, 2020 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, § lO(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, 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, § 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 January 13, 2020 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 $3 9 .18 per hour, for actual time spent by an associate attorney in my office, as well as Ms. Mahr, to (1) segregate and redact emails and (2) prepare a log of any emails withheld on the basis of attorney-client privilege ... " The Department "estimates that this review will take approximately 4.3 hours to complete." The Department "has determined that there are 86 records potentially responsive to that modified request." The Department cites FERPA under Exemption (a) as applicable to the requested records. The Department explains "Mr. Alexander has requested all emails sent between Wellesley Public Schools Superintendent David Lussier and Fiske Elementary School Principal Rachel McGregor during May 2016. The nature of these emails may contain PII," or Personally Identifiable Information. · The Department also cites Exemption (c) explaining "Mr. Lussier and Ms. McGregor may communicate about highly private issues that are affecting their students." Further, "[i]t is not uncommon for administrators to receive information about a particular student that, if

Attorney Fried SPR20/0071 Page 3 January 17 , 2020 disclosed, would constitute an unwarranted invasion of privacy." The Depaiiment cites Exemption (d) claiming, "[a]s School Depatiment administrators, it is possible that the potentially responsive records could contain information pertaining to on-going deliberations that ifreleased could taint the deliberative process." In addition, the Depaiiment claims attorney client privilege explaining "School Department administrators members frequently seek legal advice via email. It is possible that an attorney may be copied on an email ... " The Department notes, "[t]he essential fact here is not that these exemptions apply, but rather, that School Department administrators often communicate about highly sensitive matters via email meaning that each of these emails must be reviewed to determine whether FERPA ... or another exemption to the Public Records Law permits withholding or redacting such emails" The Department indicates "Ms. Mahr is the lowest paid employee capable .of performing this review; the costs associated with Ms. Mahr are $87.91 per hour ... 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 costs associated with the associate attorney's time are $185 per hour." 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 86 potentially responsive records, it will take 4.3 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 $90.11 ($39.18 x 2.3)." The Depa1iment further explaii1s "the increase in the fee from $25 per hour to $3 9 .18 per hour is not only modest but is far less than the School Department will actually incur in responding to the request." 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 $3 9 .18 per hour.

Attorney Fried SPR20/0071 Page 4 January 17, 2020 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. · Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior comi. See G. L. c. 66, § 10(d)(iv)(4), lOA(c). Sincerely, IJJJUu Rebecca S. Murr~ Supervisor of Records cc: Ronald Alexander Cynthia Mahr