Larry Price v. Wellesley, Town of (SPR 20210344)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 19, 2021 SPR21/0344 Ivria 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 (Town) seeking to charge in excess of the statutory fees in responding to a request made by Larry Price. G. L. c. 66, § 10(c). As required by law, it is my understanding that the Town furnished a copy of its petition to the requestor. Id. In a letter dated February 3, 2021, Mr. Price requested “[a]ll electronic mail (email) sent or received by Wellesley Public Schools Superintendent David Lussier between November 15, 2017 and December 31, 2017, inclusive.” Petitions to Assess Fees - Municipality 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, 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). 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

Ivria Fried, Esq. SPR21/0344 Page 2 February 19, 2021 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 February 11, 2021, the Town requests “… authorization to charge a rate higher than $25 per hour, as further described below, for actual time spent by the School Department to segregate and redact the requested records.” The Town posits that “… portions of the requested records may be protected under Exemption (a), which applies to records that are specifically or by necessary implication exempted from disclosure by statute. In this case, some of the information contained in the raw responses may contain student information protected from release under the Family Educational Rights & Privacy Act (‘FERPA’), 20 U.S.C § 1232g and 34 C.F.R. Part 99.” The Town additionally notes, “Mr. Price has requested copies of the Superintendent’s emails. Unsurprisingly, the Superintendent communicates frequently with School Department staff, parents, and students about matters directly related to the education of the student. Because the School Department is an educational institution, it is possible that these communications may fall within the protection of FERPA.” The Town cites Exemption (c) stating, “[s]ome of the emails may contain specific information regarding student’s IEP or other medical concerns. The IEP status of a student directly implicates personal medical information that must be protected from public disclosure. Additionally, the emails may also contain information about the student/family economic situation, (i.e., food security status, access to technology, or layoff status). This information, if released, would constitute an unwarranted invasion of privacy and may affect the individuals’ standing in the community.” The Town posits that “[s]ome of the emails may contain information related to the hiring, firing, promotion, or discipline of an employee. As School Superintendent, Dr. Lussier communicates frequently about employment matters. It is possible that emails containing such information would be protected from release.” Further, “Mr. Price has requested all of Dr. Lussier’s emails, including those sent to the School Department’s attorneys. Such emails may be protected from release under the Attorney Client Privilege.” With respect to fees, the Town explains “Ms. Mahr is the lowest paid employee capable of performing this review; the costs associated with Ms. Mahr are $87.91 per hour. She has the authority to review these emails, which may include confidential privacy information. She also has the full understanding of FERPA and can interpret that law as it applies to records. However, rather than requesting to assess fees at the actual rate that the Town will be charged for Ms. Mahr’s time, the School Department only seeks permission to charge $43.86, the hourly rate of Laura Ball, Administrative Assistant to Ms. Mahr.” The Town “… estimates that it will take approximately 3 minutes, on average, to review, and as necessary, redact each of the emails. This estimate is based on Ms. Mahr’s prior review of records similar to those at issue here. Thus, with 3,612 emails, it will take approximately 180.60

Ivria Fried, Esq. SPR21/0344 Page 3 February 19, 2021 hours to segregate and redact these records … $43.86 x 180.60 hours = $ 7,921.11 – $87.72 = $7,833.39.” I find the Town 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. Further I find that in light of the factors listed in the Town’s petition, the Town may assess a fee for time spent segregating and redacting responsive records at $43.86 an hour. See G. L. c. 66, § 10(d)(iv). Conclusion For the reasons described above, the Town may assess a fee for the time spent to segregate and redact these requested records at $43.86 per hour. This office encourages Mr. Price and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(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 Town must be in compliance with this determination, the Public Records Law, and its Regulations. Please note, Mr. Price 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), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Larry Price Cynthia Mahr