Matthew Rocheleau v. Lowell, City of - Public Schools (SPR 20200430)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 6, 2020 SPR20/0430 Jane Mosher-Canty, Esq. Staff Counsel for Student Services Lowell Public Schools 155 Merrimack Street, 4111 Floor Lowell, MA O1 852 Dear Attorney Mosher-Canty: I have received your petition on behalf of the Lowell Public Schools (School) requesting permission for a waiver of statutory limits on fees that may be assessed in responding to a request G. L. c. 66, § lO(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the · Depattment furnished a copy of their petition to the requestor. G. L. c. 66, § IO(c). In this matter, on February 14, 2020, Matthew Rocheleau, on behalf of the Boston Globe, requested "[a]ny/all settlement agreements regarding the provision of special education service(s) and/or educational placement(s) for students with disabilities entered into by your school district with parent(s)/guardian(s) from Jan. 1, 2010 through present." Petitions 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, § lO(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, § 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. 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 this request was not made for a commercial purpose. One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Jane Mosher-Canty, Esq. SPR20/0430 Page 2 March 6, 2020 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, § 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, § lO(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 February 28, 2020 petition, the School requests "to charge fees in excess of maximum hourly rate of $25.00 ... based on the number ofrecords and legal complexity of the records to ensure that there are no violations of the district's legal obligation to maintain the confidentiality of the students and his or her family." The School explains "that since these are legal documents drafted by one of the lawyers on the legal team over the past 10 years, that they would require review and redaction by an attorney to remove any confidential information. Lowell Public Schools' legal team is without a paralegal- so it was outlined in the estimate that any fee would be billed at the hourly rate of the

Jane Mosher-Canty, Esq. SPR20/0430 Page 3 March 6, 2020 lowest paid attorney ($51.00). After approximately 2 Yz hours of clerical and legal time, the Boston Globe has received a revised estimate based on the number of documents (81) located and pages to be reviewed and redacted by Legal Counsel." I find the School has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § lO(d)(iv). However, the School has not met its burden to assess an hourly of $50.00 per hour for legal counsel's time. Specifically, it is unclear why legal counsel is necessary to redact information contained in these records. See Champa v. Weston Pub. Sch., 473 Mass. 86 (2015). Conclusion For the reasons discussed above, the School is permitted to charge for time spent segregating and redacting the requested records, to the extent the responsive records contain the exempt information. To the extent the responsive records contain the exempt information as described above, the School may assess a charge for the segregation and redaction of such exempt material. However, the School must provide more information regarding the applicability of the exemptions when preparing its fee estimate. G. L. c. 66, § lO(d)(iv). The School must provide a response to Mr. Rocheleau within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Rocheleau may appeal the School's fee estimate within ninety days. See 950 C.M.R. 32.08(1). 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, § lOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau