Malden Transparency v. Ashland, Town of - Public Schools (SPR 20212607)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 20, 2021 SPR21/2607 Kathryn Silva Director for Student Services Town of Ashland Public Schools 87 West Union Street Ashland, MA 01721 Dear Ms. Silva: I have received the petition of Malden Transparency appealing the response of the Town of Ashland 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, Malden Transparency 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’s Petition This request was the subject of an October 6, 2021 petition from the School. See SPR21/2610 Supervisor of Records Determination (Supervisor) (October 13, 2021). In my October 13th 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 Malden Transparency with a fee estimate; however, Malden Transparency petitioned the Supervisor, and this appeal 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 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

Kathryn Silva SPR21/2607 Page 2 October 20, 2021 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 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 2021 Fee Estimate In its October 2021 fee estimate, the School states that it “…is in possession of approximately 60 pages that are responsive to [the] request for invoices from MHTL [the School’s law firm, Murphy, Hesse, Toomey & Lehane, LLP]. The [School] has no other responsive documents.” The School goes on to explain that “[e]ach page of the records [Malden Transparency] seek[s] must be reviewed to determine which exemption or privilege applies.” In its estimate, the

Kathryn Silva SPR21/2607 Page 3 October 20, 2021 School further explains the following: In this case, the Office of District 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 has indicated that certain of the information within the content to the records contains information concerning identifying information of students and/or parents or guardians of the students which much be segregated and redacted from the records under Exemption (a) and federal and state laws. In addition, the School indicated that certain of the information within the content of the records are exempt under Exemption (c) concerning employees that relates to performance or complaints, evaluations of employees, request for accommodations, leaves of absences, and discipline of employees. The School sought to charge for redactions required under Exemption (c) of the Public Records Law. 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 1 hour. 1 hour multiplied by $75 per hour yields a fee estimate of $75.00. 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, on October 13, 2021, 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 Malden Transparency’s request at this time. Any revision to Malden Transparency’s request would result in the requirement to issue a revised estimate. Accordingly, I will consider this administrative appeal closed.

Kathryn Silva SPR21/2607 Page 4 October 20, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden Transparency