Evan Davie v. North Middlesex Regional School District (SPR 20212232)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 8, 2021 SPR21/2232 Robin Eibye Records Access Officer North Middlesex Regional School District 66 Brookline Street Townsend, MA 01469 Dear Robin Eibye, On August 31, 2021, I received your petition on behalf of the North Middlesex Regional School 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, Evan Davie. Id. On August 27, 2021, Mr. Davie requested “…[a]ll, sent emails from the following NMRSD email addresses from the time period of July 1, 2021 through August 30, 2021.” 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 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

Robin Eibye SPR21/2232 Page 2 September 8, 2021 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 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 31, 2021 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):

Robin Eibye SPR21/2232 Page 3 September 8, 2021 Exemption (a) – The individuals whose e-mails have been requested frequently communicate with parents and student. Therefore, these communications implicate student record/education record information under 603 CMR 23.00 and the Family Educational Rights and Privacy Act (‘FERPA’) in containing student information that must be redacted. In particular, three of the requested individuals are administrators that frequently communicate with staff and parents about students and said information must be redacted in order to comply with 603 CMR 23.00 and FERPA. Exemption (c) – The communications to and from the administrators contains personnel and medical information that must be redacted. In particular, the requested e-mails implicate communications from staff members, parents and students raising personal medical circumstances and accommodation requests related to COVID-19. Exemption (c) – The communications to and from the administrators’ reference information which, if disclosed, constitutes an unwarranted invasion of personal privacy related to certain individuals. In particular, the requested e-mails implicate communications from staff members, parents and students raising private information related to COVID-19. Exemption (o) – The requested communications contain personal email addresses and telephone numbers of public employees. Attorney-Client Privileged Communications – The requested e-mails contain references to attorney-client privileged communications that must be redacted to preserve the privilege.” The Distict 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 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 [] what constitutes information falling under the attorney-client privilege that must be redacted.”

Robin Eibye SPR21/2232 Page 4 September 8, 2021 The District notes that “[t]he hourly rate associated with the lowest paid employee who has the necessary skill required to perform this task is $235 per hour. The District estimates that because of the amount of information exempt under G.L. c. 4, §7(26), [it] 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.” 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. Davie 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 Regulations. Please note, Mr. Davie 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: Evan Davie