Malden Transparency v. Lincoln, Town of -- Public Schools (SPR 20212598)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 20, 2021 SPR21/2598 Rebecca E. McFall, Ed.D. Superintendent Lincoln Public Schools Ballfield Road Lincoln, MA 01773 Dear Dr. McFall: I have received the petition of OpenMalden.com appealing the response of the Lincoln 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 5, 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

Rebecca E. McFall, Ed.D. SPR21/2598 Page 2 October 20, 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); -se-e -a-ls-o 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 5th Fee Estimate In its October 5, 2021 fee estimate, the School states the following: [C]ertain sections of the documents available will be redacted. The sections that will be redacted are those sections which relate to particular students that could be easily identified without said reactions. It is the [School’s] contention that said sections are exempted from release pursuant to M.G.L. c. 4, § 7(26)(c) . . . as well as M.G.L. c. 4, § 7(26)(a) . . . as the information is protected by the Family Educational Rights and Privacy Act (FERPA) and the Massachusetts Students Records Law and Regulations. [The School] will be assessing a fee for the staff time required to fulfill the request. . . This estimate has been created by assessing the time it might take the lowest-paid clerical or professional individual to complete this work. In accordance with the Public Records Law, the hourly fee assessed cannot exceed $25.00 per hour. For communities with a population of more than 20,000, the hourly fee for the first two hours is waived. Lincoln

Rebecca E. McFall, Ed.D. SPR21/2598 Page 3 October 20, 2021 Massachusetts has a population of less than 20,000. Additionally, the School provides the table below: Request Requested Records Time Employee Estimated Information Available Title Cost 1 All billing statements Invoices 3 Administrative $75.00 and/or invoices from hours Assistant [a named law firm]. 2 All documents Purchase Orders 3 Administrative $75.00 evidencing payments hours Assistant made to [a named law firm]. Total $150.00 In an email to OpenMalden.com and this office on October 8, 2021, the School further explained that it “did not request compensation for redaction. [The School] only requested time, as allowed under the law, that it will take [School] employees to carry out the work of gathering the documents for electronic submission.” In this case, the School has made clear that the municipality has a population of less than 20,000, and that the School is charging a fee of $25.00, which is less than the salary of the lowest paid employee with the necessary skills. However, based on the School’s response, it is unclear why the School requires three hours to gather responsive invoices and another three hours to gather purchase orders, for a total of six hours. It is unclear how this amount of time is necessary. If there are additional tasks involved, the School must provide further details regarding what each task entails. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reasons discussed above, I find the School must revise its fee estimate or provide further explanation of how the fee assessed is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the School is ordered to provide OpenMalden.com with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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.

Rebecca E. McFall, Ed.D. SPR21/2598 Page 4 October 20, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: OpenMalden.com