Deb Holloway v. Ayer Shirley Regional School District (SPR 20210676)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 26, 2021 SPR21/0676 Kevin F. Bresnahan, Esq. Murphy, Hesse, Toomey & Lehane, LLP 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Bresnahan: I have received your petition on behalf of the Ayer-Shirley Regional School District (District) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10 (d)(iv). As required by law, it is my understanding that the District furnished a copy of this petition to the requestor. Id. In a letter dated March 4, 2021, Deb Holloway requested, “[a]ny and all records of emails and text messages (if the district supplys [sic] or pays for the superintendent’s cell phone), from January 1st, 2019 to the date this request is processed.” Ms. Holloway notes, “[t]his includes but is not limited to emails, email attachments, pictures, gifs, memes, text messages, and social media messaging (on cell phone).” 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 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

Kevin F. Bresnahan, Esq. SPR21/0676 Page 2 March 26, 2021 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 18, 2021, the District “…requests approval to assess a fee of $25 per hour for all segregation and redaction time associated with the responsive records.” The District explains it “…will need to review each of the approximately 110,000 records that are responsive to the request to determine whether any exemptions apply to each record, and to make appropriate withholdings and/or redactions when necessary.” The District cites Exemption (a) stating, “[i]t is expected that emails sent and received by the Superintendent of Schools are likely to contain student record information, as the Superintendent frequently sends and receives emails to and from school staff and parents that relate to students and contain information protected from disclosure under the aforementioned statute.” The District cites Exemption (c) explaining, “…the Superintendent is responsible for or has oversight of almost all hiring, firing, and disciplinary decisions within the District, and directly supervises numerous administrative employees. The Superintendent also acts as the School Committee’s representative in labor relations with the various unions representing most of the District’s employees, including adjusting grievances under the various collective bargaining agreements. As a result, the Superintendent’s emails frequently relate to personnel matters, and include information which would be exempt as personnel and medical files or information. In addition, the emails are likely to include information which is exempt under the second clause of Exemption C, implicating privacy interests of specific individuals.” The District claims Exemption (d), asserting “…the School Committee is responsible for development of District policy. The Superintendent, in her role as chief executive of the District, works with and makes recommendations to the School Committee on its ongoing policy- development function, and it is anticipated that there will be emails in the responsive records which include such information which is exempt under Exemption D.” Additionally, the District notes “[t]he responsive records will include numerous emails between the Superintendent and the District’s attorney for the purpose of obtaining legal advice. These emails must thus be withheld or redacted in their entirety… the above sets forth the most likely exemptions that will apply to the responsive records, based on the District’s general knowledge of the content of such emails generally. However, without reviewing all 110,000 records, it is not possible to predict exactly which exemptions may apply.” The District “…estimates that it will take approximately two (minutes) to review, segregate and possibly redact each of the 110,000 records. Thus, the entire process will take approximately three thousand six hundred sixty-six (3,666) hours for all of the records. The review will be performed by employees in the Superintendent’s Office or this office. Although

Kevin F. Bresnahan, Esq. SPR21/0676 Page 3 March 26, 2021 each of the effective hourly rates for those individuals exceeds $25 per hour, the District is not seeking authorization to charge more than $25 per hour.” Conclusion The District is permitted to charge for time spent segregating and redacting the requested records. To the extent the responsive records contain the exempt information as described above, the District may assess a fee for segregation and redaction. Further, this office encourages Ms. Holloway and the District 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 District 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). The District shall provide a response to Ms. Holloway within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Holloway may appeal the District’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: Mary Malone, Ed.D Deb Holloway