Malden Transparency v. Easthampton, City of - Public Schools (SPR 20212561)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 19, 2021 SPR21/2561 Sarah Mochak Director of Special Education Easthampton Public Schools 50 Payson Avenue Easthampton, MA 01027 Dear Ms. Mochak: I have received the petition of Malden Transparency appealing the response of the Easthampton 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, the requestor sought 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]. Previous petition This request was the subject of a previous petition from the School. See SPR21/2558 Supervisor of Records Determination (October 12, 2021). In my October 12th determination, I found that the School had established good cause for a time extension of 30 business days, that the School may assess a fee for segregation and redaction, and that the School may assess a fee limited to $75.00 per hour for attorney review. The School provided the requestor with a fee estimate on October 4, 2021. Objecting to the fees, the requestor petitioned this office and this appeal, SPR21/2561, was opened as a result. Fee estimate – municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). 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

Sarah Mochak SPR21/2561 Page 2 October 19, 2021 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 fee estimate, the School states that it “is in possession of approximately 2550 pages that are responsive to [the] request for invoices from MHTL.” The School explains that “[e]ach page of the records . . . must be reviewed to determine which exemption or privilege applies.” The School further explains that its Counsel “. . . is the lowest paid employee with the necessary skill to determine whether the attorney-client privilege requires certain portions of the records [Malden Transparency] seek[s] 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.” The School “. . . estimates that it will take District Counsel approximately 1 minute per page to complete its review, segregation, and potential redaction of the records sought in [the] request. As a result, the [School] estimates a total of 4.16 hours. [You] will not be charged for the first [two] (2) of those services.” The School states, “2.16 hours multiplied by $75 per hour yields a fee estimate of $162.50. The actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process.” As noted above, the School was previously approved to assess a fee for segregation and redaction, and to assess a fee limited to $75.00 per hour for attorney review. Conclusion As set forth above, I find the School has met its burden in responding to the requestor’s request at this time. Any revision to the request would result in the requirement to issue a revised estimate. Accordingly, I will consider this administrative appeal closed.

Sarah Mochak SPR21/2561 Page 3 October 19, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden Transparency