Brian DeLacey v. Malden, City of - Public Schools (SPR 20210920)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 14, 2021 SPR21/0920 Shirley Dorai Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Ms. Dorai: I have received your petition on behalf of the Malden Public Schools (School) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10(d)(iv). As required by law, the School furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On March 28, 2021, Brian DeLacey requested: “…any record that includes the word ‘WAIVER’ in the body or subject of email, presentations, agenda, minutes, reports, and other meeting documents created or received by any member or clerk of the School Committee, any staff member of the Mayor’s office and the School Superintendent. This request seeks records created or shared any time from 3/1/21 to the date of your request. . . .” Petition to Assess Fees 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 (Supervisor) 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). 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 circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve an agency’s petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. 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

Shirley Dorai SPR21/0920 Page 2 April 14, 2021 G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency 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; 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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 petition dated April 9, 2021, the School requests approval to assess fees for costs associated with responding to a public records request. The School states that it “. . . has approximately 357 emails that may be responsive to [Mr. DeLacey’s] request.” The School further “estimates a total of 12.4 hours” to review and redact records. The School goes on to say that “Mr. DeLacey will not be charged for the first two (2) hours of those services.” The School highlights the need for review “as [records] may contain attorney-client privilege, student record information or private personal information under Exemption (c).” Under Exemption (c) the

Shirley Dorai SPR21/0920 Page 3 April 14, 2021 School points to “information on employees that relates to performance or complaints, and personal information and contact information for families, such as information about a family’s personal circumstances” that will need to be redacted. Regarding attorney-client privilege, the School states that it “will need to redact the records as it expects that some of the emails will be solclicitng advice from the attorney for Malden.” The School “estimates 1 minute per email for redactions based on the sample or another 357 minutes or 5.95 hours.” Conclusion In light of the School’s petition, I find the School has met its burden to explain how the response could not be prudently completed without the 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. This office encourages Mr. DeLacey and the School to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Any fee estimate by the School must be in compliance with this determination, the Public Records Law, and its Regulations. Please note, Mr. DeLacey 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: Brian DeLacey