Malden Transparency v. Sharon, Town of - Public Schools (SPR 20212534)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 15, 2021 SPR21/2534 Meg Dussault, Ed.D Interim Assistant Superintendent Town of Sharon Public Schools 77 Pond Street Sharon, MA 02067 Dear Dr. Dussault: I have received the petition of Malden Transparency appealing the response of the Town of Sharon Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Malden Transparency sought “[a]ll billing statements and/or invoices from Murphy, Hesse, Toomey & Lehane, LLP, . . .[,]” and “[a]ll documents evidencing payments made to Murphy, Hesse, Toomey & Lehane, LLP. . . . For the time period January 1, 2019 through the date you respond with the responsive documents[.]” On September 30, 2021, the School provided Malden Transparency with four “invoice browse sheets evidencing payment made to Murphy, Hesse, Toomey & Lehane, LLP (MHTL).” The School also informed Malden Transparency that it is in possession of approximately 43 pages of invoices from MHTL that are responsive to the request. A fee estimate for the cost of producing the invoices was provided with its September 30th response. As a result of the School’s fee estimate, Malden Transparency petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Fees - municipalities 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) 2 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, 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

Meg Dussault, Ed.D SPR21/2534 Page 2 October 15, 2021 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). The School’s September fee estimate In its fee estimate, the School indicates, “[e]ach page of the records…must be reviewed to determine which exemption or privilege applies.” The School asserts that the records likely contain content that includes, attorney-client privilege material, personally identifying information of students, information regarding employees that relates to performance or complaints, evaluations of employees, leaves of absences and discipline of employees. Therefore, the School cites the attorney-client privilege, Exemption (a) and federal and state laws regarding student records and personally identifiable information of students, and Exemption (c). The School estimates, “…approximately 5 minutes per page to complete [the segregation and redaction].” It is estimated that the review, segregation and redaction will take 3 hours at $75.00 per hour; however, the School will not charge for the first two hours of that time. See G. L. c. 66, § 10(d)(iii). The School asserts, “…the Office of District Counsel is the lowest paid employee with the necessary skill required to determine whether the attorney-client privilege requires certain portions of the records [Malden Transparency] seek to be redacted. While performing that review, Counsel can also determine whether other exemptions apply, rather than have a separate employee review the records at additional cost. Counsel’s hourly rate is $240…the [School] will request that the Supervisor allow it to charge $75 per hour to complete the review.” The cost is estimated as 1 hour of time at $75 per hour for a total of $75.00 to perform the review, segregation and redaction; however, the School states, “[t]he actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process.” The School has requested a check for $75.00 to begin the process. The School’s October 5, 2021 fee and time petition to the Supervisor On October 5th, the School filed a petition with the Supervisor requesting an extension of time to produce records, a waiver of statutory limits on fees that may be assessed in responding to the request, permission to charge for time spent segregating or redacting responsive records, and relief from the obligation to respond to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). See SPR21/2599 Determination of the Supervisor ----- (October 8, 2021).

Meg Dussault, Ed.D SPR21/2534 Page 3 October 15, 2021 Based on the School’s petition, I found the School met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the School may assess a fee for the segregation and redaction of such exempt material. Additionally, I found the School met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). I determined the School may assess a fee limited to $75.00 per hour for attorney review. See SPR21/2599 Determination of the Supervisor (October 8, 2021). Time per page to review, segregate and redact the invoices Based on the School’s estimation of 5 minutes of time per page to review, segregate and redact exempt material, I find it is unclear why the School needs 5 minutes per page to do so. The School must clarify this issue, and provide Malden Transparency with a supplemental response regarding this issue. Conclusion Accordingly, the School is ordered to provide Malden Transparency with a response, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden Transparency