Charlotte Hogan v. Sharon, Town of - Public Schools (SPR 20210647)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 23, 2021 SPR21/0647 Jennifer F. King, Esq. Valerio Dominello & Hillman, LLC One University Avenue, Suite 300B Westwood, MA 02090 Dear Attorney King: I have received your petition on behalf of the Town of Sharon (Town) requesting permission to charge for time spent segregating or redacting responsive records as well as charging in excess of the statutory fees. G. L. c. 66, § 10 (d)(iv). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor. Id. In a letter dated March 16, 2021, Charlotte Hogan requested: 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 - 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). 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. SPR21/0647 Page 2 March 23, 2021 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 petition dated March 16, 2021, the Town “…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.” Additionally, the Town “...seeks approval to charge an hourly rate of $240 per hour.” The Town cites Exemption (a) stating, “[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). Legal 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 Town cites Exemption (c) stating, “[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. Legal bills are likely to contain information related to a student’s medical issues that required legal consultation.” Additionally, the Town notes, “[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 Town contends that “[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 cannot be performed by a member of the Committee or a District Employee; rather, it must be completed by an associate attorney for the

Jennifer F. King, Esq. SPR21/0647 Page 3 March 23, 2021 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 Town “…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.” Conclusion I find the Town may assess a fee for the time spent to compile, segregate, and redact the requested records. With respect to Attorney review, I find the Town may assess a fee of no more than $75.00 per hour in light of the factors in G. L. c. 66, § 10(d)(iv). Further, this office encourages Ms. Hogan and the Town 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 Town 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 Town must provide a response to Ms. Hogan within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Hogan may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, the requestor may seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Charlotte Hogan Adam Shain