Malden Transparency v. Danvers, Town of - Public Schools (SPR 20212555)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 19, 2021 SPR21/2555 Keith Taverna Assistant Superintendent of Schools Records Access Officer Danvers Public Schools 64 Cabot Road Danvers, MA 01923 Dear Mr. Taverna: I have received the petition of OpenMalden.com appealing the response of the Danvers Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 26, 2021, OpenMalden.com requested the following: For the time period January 1, 2019 through the date [the School] respond[s] with the responsive documents . . . 1. All billing statements and/or invoices from [a named law firm]. 2. All documents evidencing payments made to [a named law firm]. The School responded on October 4, 2021, providing a fee estimate. Objecting to the fees, OpenMalden.com appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian 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

Keith Taverna SPR21/2555 Page 2 October 19, 2021 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records ----- custodian must provide the responsive records. Fee Estimate – 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, 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 October 4th Fee Estimate In its October 4, 2021 response, the School provided a fee estimate. In its fee estimate, the School states that “the following records are responsive to each portion of [the] request:” 1. Murphy, Hesse, Toomey & Lehane, LLP billing statements to the Danvers Public Schools for the relevant time period (106 pages); 2. Danvers Public Schools payment ledgers and checks relating to District payments made to Murphy, Hesse, Toomey & Lehane, LLP for the relevant time period (number of pages to be determined). . . . [The School] anticipates that significant redaction will be required by law for several reasons, including: (1) redaction of privileged attorney-client communications, more specifically, billing descriptions describing specific work that attorneys performed for the District in their capacity as legal counsel providing legal advice to the District, which has not been

Keith Taverna SPR21/2555 Page 3 October 19, 2021 waived; (2) redaction of confidential student information, which is exempt from disclosure under M.G.L. c. 4, Section 7(26)(a), the statutory exemption, relative to personally identifying student information that the District is legally obligated to safeguard under both state and federal law and regulations (see 603 C.M.R. 23.00; 20 U.S.C. § 1232g; 34 C.F.R. 99); (3) redaction of any confidential personnel information, under M.G .L. c. 4, Section 7(26)(c), the privacy exemption, which exempts from disclosure “personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy” (other than those related to a law enforcement misconduct investigation); (4) redaction of any other confidential information, the disclosure of which would violate an individual’s privacy under applicable legal standards relating to the M.G.L. c. 4, Section 7(26)(c), the privacy exemption. . . . The District’s good faith fee estimate relative to this request, which is based on conservative estimates and is substantially less than the actual cost to the District to respond to this request, has been calculated as follows. • The District’s initial good faith search and review of its records to determine the extent of District records responsive to Item No. 1 of [the] request has already taken District staff three (3) hours. • The District reasonably anticipates that a good faith search and review of its records to determine the extent of District records responsive to Item No. 2 of [the] request would take approximately four (4) additional hours relative to Item No. 1 of your request. . . . Based on the nature and scope of the request and the results of the District’s initial search, a qualified employee must perform the following work in order to respond to this request: • Search, segregate, and compile all potentially responsive records. The lowest paid person capable of performing this task earns greater than $25.00 per hour. • Review these records to determine responsiveness. The lowest paid person capable of performing this task earns greater than $25.00 per hour. • Carefully inspect responsive records, segregating and redacting any privileged, confidential or exempt information contained in any records, requiring analysis of the applicability M.G.L. c. 4, Section 7, clause 26 exemptions and other applicable law. The lowest paid person capable of performing this task earns greater than $25.00 per hour. . . . Using conservative estimates, the District’s reasonable good faith fee estimate is therefore calculated as follows: • Seven (7) total hours of search, review and segregation time (3 hours relating to Item No. 1 of [the] request; 4 hours relating to Item No. 2 of [the] request);

Keith Taverna SPR21/2555 Page 4 October 19, 2021 • The District conservatively estimates that redacting the 106 pages of records responsive to Item No. 1 of [the] request will take an average of one (1) minute per page, totaling 106 minutes, divided by sixty (60) minutes per hour, equaling 1.766 hours, rounded down to 1.75 hours; • While the number of pages of records responsive to Item No. 2 of this request has yet to be determined, the District conservatively estimates that at least 1.75 additional hours will be needed to review and redact the records responsive to Item No. 2 of this request; • Therefore, the District conservatively and reasonably estimates that a total of 10.5 hours will be needed to respond to this request, as outlined above. • Because the Town of Danvers has a population of over 20,000 residents, the first two (2) hours of time are deducted, leaving 8.5 hours, multiplied by the maximum allowed hourly employee pay rate of $25.00 per hour (as stated, this is less than the actual hourly rate of pay of the lowest paid employee qualified to perform this work), resulting in a reasonable good faith fee estimate of $212.50 (8.5 hours at $25.00 per hour). See M.G.L. c. 66, Section 10(d)(iii). The District does not anticipate any additional printing or copying fees associated with this request. Unclear Appeal In the appeal petition and in an email to this office and the School on October 7, 2021, OpenMalden.com contends, among other things, the following: 1. The RAO must quantify any cost estimate with specific records, with specific costs associated with only legally allowed charges. . . 2. The RAO cannot charge for records organization, only search, segregation and redaction which comports with specific exemptions. 3. The RAO has proposed a $75 per hour charge. . . 4. The RAO has proposed 1 minute to segregate and redact. This time estimate is at least double the amount of time required to perform any statutorily required segregation and redaction. . . 5. The RAO is requesting time be allowed for redaction of billing records. . . 6. The SPR cannot make a finding of Harassment without qualifying the two-prong test outlined in G. L. c. 66, § 10(c)(vi). . . As explained above, I find the School has met its burden to explain that the segregation and redaction are required by law. Further, as described above and confirmed in a letter to this office and the requestor on October 7, 2021, the School has specifically described the records responsive to the request, including an estimated page count for records found in its initial search; the School is not charging for organization; and the School is charging a rate of $25 (not $75) per hour. Further, at this time, this office is unaware of any petition from the School seeking relief from the obligation to respond to the request. Accordingly, I find the basis on OpenMalden.com’s appeal is unclear. OpenMalden.com is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to

Keith Taverna SPR21/2555 Page 5 October 19, 2021 timely respond.” 950 C.M.R. 32.08(l)(f). Consequently, OpenMalden.com must describe specific objections to the School’s fee estimate. At this time, I will consider this matter closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: OpenMalden.com