Judy Crosby v. Sharon, Town of - Public Schools (SPR 20210729)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 31, 2021 SPR21/0729 Jennifer F. King, Esq. Valerio Dominello & Hillman, LLC 1 University Ave #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 11, 2021, Judith Crosby requested “…copies of any and all communications from Feb. 16, 2021 through March 11, 2021 (inclusive of the beginning and end dates of such period) involving any and all Sharon School Committee matters to and from any or all of the following members of the Sharon School Committee...” 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

Jennifer F. King, Esq. SPR21/0729 Page 2 March 31, 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 24, 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. 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.” The Town contends that “[t]he redaction of the requested documents requires both knowledge in law and knowledge of the facts at issue. Accordingly, this redaction cannot be performed by a member of the Committee or a District employee; rather, it must be completed by legal counsel for the Committee. In particular, the records requested must be reviewed and redacted by an individual who is knowledgeable, well-versed and trained in the following subject areas: • FERPA and 603 CMR 23.00 and specifically, what constitutes personally identifiable information (‘PII’) subject to redaction; • Case law responsive to Exemption (c), and specifically, how the Supervisor of Public Records and courts have interpreted the type of medical and personal privacy information that may be redacted and applying those decisions to the requested records; • Attorney-client privilege, and specifically, the application of Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007) and other cases as to what constitutes information falling under the attorney-client privilege that must be redacted.” The Town also cites Exemption (o) stating, “[t]he communications between and among School Committee members contain personal email addresses and telephone numbers of public employees.” The Town asserts that “[t]he hourly rate associated with the lowest paid employee who has the necessary skill required to perform this task is $240 per hour. The Committee estimates that because of the amount of information exempt under G. L. c. 4, §7(26) will take an average of one to one and a half (1 – 1.5) 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.”

Jennifer F. King, Esq. SPR21/0729 Page 3 March 31, 2021 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. Crosby 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). The Town shall provide a response to Ms. Crosby within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Crosby 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: Judith Crosby Adam Shain