Maureen Silverleib v. Sharon, Town of - Public Schools (SPR 20211067)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 3, 2021 SPR21/1067 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 April 16, 2021, Maureen Silverleib 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. SPR21/1067 Page 2 May 3, 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 to this office dated April 26, 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 $75 per hour.” The Town posits 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 Committee.” The Town cites Exemption (a) stating, “[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 Town cites Exemption (c) noting that “[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.” Additionally, the Town contends that “[l]egal bills are likely to contain information related to a student’s medical issues that required legal consultation.” The Town’s petition also states that “[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.” Given the public interest served by limiting the cost of public access to the requested

Jennifer F. King, Esq. SPR21/1067 Page 3 May 3, 2021 records, permission to charge for time spent segregating or redacting responsive records cannot be granted. However, this does not preclude the Town from charging for segregation and redaction that is required by law at a rate of no more than $75.00 per hour in light of the factors in G. L. c. 66, § 10(d)(iv). Conclusion This office encourages Ms. Silverleib and the Town continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Any updated fee estimate by the Town must be in compliance with this determination, the Public Records Law, and its Access Regulations. The Town shall provide a response to Ms. Silverleib within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Silverleib may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Maureen Silverleib Adam Shain