Erin Wilkinson v. Sharon, Town of - Public Schools (SPR 20210646)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 24, 2021 SPR21/0646 Jennifer F. King, Esq. Valerio Dominello & Hillman LLC Sharon School Committee One University Avenue, Suite 300B Westwood, MA 02090 Dear Attorney King: I have received your petition on behalf of the Sharon School Committee (School/Committee) seeking permission to charge $240.00 per hour in responding to a request made by Erin Wilkinson. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the School furnished a copy of its petition to the requestor. Id. On March 16, 2021, Ms. Wilkinson requested four categories of records: “1. All School Committee warrants signed in the fiscal year 2020/2021 2. All legal bills issued to the School Committee by hired law firms in the fiscal year July 1, 2020 through June 30, 2021, including a breakdown of the categories of legal expenses and/or a further breakdown of expenses per lawyer per firm, used by the School Committee for the 2020/2021 fiscal year. 3. All conversation via emails and text between school committee members concerning legal fees and expenses for the fiscal year 2020/2021, and conversations pertaining to the 2021/2022 school budget. 4. All letters of engagement between the SC and law firms for the fiscal year 2020/2021 and letters between the SC and law firms regarding termination of engagement.” 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, § 10(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 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

Jennifer F. King, Esq. SPR21/0646 Page 2 March 24, 2021 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, § 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 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). 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 March 17, 2021 petition, the School “seeks to assess fees for time spent segregating and redacting records that fall within statutory exemptions beyond Exemption (a) of G.L. c. 4, §7(26) given the likelihood that the aforementioned categories of information need to be redacted. Moreover, the Committee seeks to charge a rate in excess of $25 per hour. Specifically, the Committee seeks approval to charge an hourly rate of $240 per hour.”

Jennifer F. King, Esq. SPR21/0646 Page 3 March 24, 2021 The School cites the Family Educational Rights and Privacy Act (FERPA) and G.L. c. 30A, § 22(f), pursuant to Exemption (a) as a potential source of redaction. The School explains “[l]egal bills and communications between School Committee members are highly likely to contain information specifically or by necessary implication exempted from disclosure by statute, because they would contain information related to executive session minutes which are exempt from disclosure pursuant to G.L. c. 30A, § 22(f).” The School further explains “[l]egal bills are likely to contain information specifically or by necessary implication exempted from disclosure by statute, in that would implicate student record/education record information under 603 CMR 23.00 and the Family Educational Rights and Privacy Act (‘FERPA’).” The School also cites Exemption (c) explaining “[l]egal bills are likely to contain information related to an employee’s personnel/medical issue that required legal consultation. This includes, but is not limited to, employee disciplinary information, employee exposure to COVID-19, subsequent quarantines, and individual accommodations.” The School further explains “[l]egal bills are likely to contain information related to a student’s medical issues that required legal consultation.” Lastly, the School cites the attorney-client privilege explaining “[i]t is highly likely that legal bills and communications between School Committee members regarding legal bills will contain information regarding advice provided by attorneys to the Committee. These communications will need to be redacted to preserve attorney-client privilege.” The School indicates “[t]he redaction of legal bills requires both knowledge in law and knowledge of the facts surrounding the work performed by the Committee’s attorneys. Accordingly, this redaction…must be completed by an associate attorney for the Committee. The hourly rate associated with the lowest paid employee who has the necessary skill required to perform this task is $240 per hour.” The School “estimates that because of the voluminous amount of information exempt under G.L. c. 4, §7(26) and the attorney-client privilege contained within the requested information, it will take an average of two (2) minutes to review and redact each page. This number is based on the need to carefully read each page, make the necessary determinations regarding whether the record contains exempt information, redact any confidential information contained in the records if found, and the possibility that other individuals may need to be consulted throughout this process.” The School further indicates “it is more than willing, consistent with its obligation under G.L. c. 66, § 10(b)(vii), to communicate with the requestors to suggest reasonable modifications of the scope of the request that would enable more efficient and affordable record access.” Given the records likely contain personnel and student record information, as well as privileged information, I find the School has met its burden to explain how the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Further, I -- find the School has established how it may assess a fee for the time spent to segregate and redact these requested records at no more than $75 per hour.

Jennifer F. King, Esq. SPR21/0646 Page 4 March 24, 2021 Conclusion For the reasons described above, I find the School has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the School may assess a fee for segregation and redaction. However, this fee is limited to $75 per hour for the time spent to segregate and redact these requested records. Further, this office encourages Ms. Wilkinson and the School to continue to communicate to facilitate providing records more efficiently and affordably. When preparing a fee estimate for the provision of the requested records, the School is advised to provide a detailed explanation to the requestor indicating why this estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). Specifically, it is unclear why tasks could not be performed by a lower paid employee. The School must provide a response to Ms. Wilkinson within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Wilkinson may appeal the School’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Ms. Wilkinson 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: Erin Wilkinson