Ed Nastari v. Arlington, Town of - Public Schools (SPR 20212182)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 31, 2021 SPR21/2182 Nicholas J. Dominello, Esq. Valerio Dominello & Hillman, LLC 1 University Ave #300b Westwood, MA 02090 Dear Attorney Dominello, On August 25, 2021, this office received your petition on behalf of the Arlington Public Schools District (District) seeking permission to charge for time spent segregating or redacting responsive records, as well as a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(c), (d)(iv). As required by law, the District furnished a copy of its petition to the requestor, Eddie Nastari of AFSCME Local 680. Id. On August 13, 2021, Mr. Nastari requested “…all of [Steve Angelos’] emails for the past 24 months.” Petitions 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 a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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 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

Nicholas J. Dominello, Esq. SPR21/2182 Page 2 August 31, 2021 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 August 25th pettion, the District “…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 District seeks to charge a rate in excess of $25 per hour. Specifically, the District seeks approval to charge an hourly rate of $235 per hour.” The District contends that “…the requested records must be redacted where many of the responsive documents will meet the following inclusive, not exhaustive, exemptions set forth in G.L. c. 4, §7(26): • Exemption (a) – Mr. Angelo is the Director of Transportation, and frequently communicates with staff and parents about students. Therefore, these communications implicate student record/education record information under 603 CMR 23.00 and the

Nicholas J. Dominello, Esq. SPR21/2182 Page 3 August 31, 2021 Family Educational Rights and Privacy Act (‘FERPA’) in containing student information that must be redacted. In particular, Mr. Angelo communicates with staff and parents about transportation for students with identified disabilities and said information must be redacted in order to comply with 603 CMR 23.00 and FERPA. • Exemption (c) – The communications to and from Mr. Angelo contain personnel information that must be redacted. In particular, certain communications constitute information that is ‘useful in making employment decisions regarding an employee.’ Wakefield Teachers Ass’n v. School Committee, 431 Mass 792, 798 (2000). • Exemption (c) – The communications to and from Mr. Angelo reference information which, if disclosed, constitutes an unwarranted invasion of personal privacy related to certain individuals. In particular, Mr. Angelo communicates with individuals about personal circumstances that if disclosed would constitute an unwarranted invasion of personal privacy. • Exemption (o) – The communications to and from Mr. Angelo contain personal email addresses and telephone numbers of public employees. • Attorney-Client Privileged Communications – The communications to and from Mr. Angelo contain references to attorney-client privileged communications that must be redacted to preserve the privilege.” The District explains, “…redaction cannot be performed by a District employee; rather, it must be completed by legal counsel for the District. 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 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 the what constitutes information falling under the attorney-client privilege that must be redacted.” The District “ …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

Nicholas J. Dominello, Esq. SPR21/2182 Page 4 August 31, 2021 confidential information contained in the records if found, and the possibility that other individuals may need to be consulted throughout this process. The purpose of assessing fees is to simply offset the costs that will be charged to the District in responding to this request and ensure that the District can properly redact information as required by G.L. c. 4, §7(26).” Conclusion In light of the above, I find the District has met its burden to explain how the request could not prudently be completed without redaction or segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). I find the District may assess a fee for the time spent to segregate and redact these requested records at $75.00 per hour. Further, this office encourages Mr. Nastari and the District to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § l0(b)(vii) (a municipality or agency 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 or agency to produce records sought more efficiently and affordably). Any updated fee estimate by the District must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, Mr. Nastari 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), l0A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Eddie Nastari