Malden Transparency v. Mansfield, Town of - Public Schools (SPR 20212608)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 21, 2021 SPR21/2608 Edward Donoghue Assistant Superintendent Mansfield Public Schools 2 Park Row Mansfield, MA 02048 Dear Assistant Superintendent Donoghue: 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 petition from the School. See SPR21/2608 Supervisor of Records Determination (October 14, 2021). In my October 14th 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 $75.00 per hour for attorney review. The School provided the requestor with a fee estimate on October 6, 2021. Objecting to the fees, the requestor petitioned this office and this appeal, SPR21/2608, was opened as a result. Fee Estimate – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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

Assistant Superintendent Edward Donoghue SPR21/2608 Page 2 October 21, 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 6th fee estimate In its October 6, 2021 fee estimate, the School states that it “. . . is in possession of approximately 180 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 also 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 [the requestor] 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 36 hours. [You] will not be charged for the first two (2) hours of those services.” The School indicates, “[t]hirty-six hours multiplied by $75 per hour yields a fee estimate of $2,700.00. The actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process.” Although the School stated that it is assessing a $2,700 fee to produce responsive records, it is unclear how the School calculated its fee. Particularly, where the School states that it is charging “. . .1 minute per page to complete its review, segregation, and potential redaction of the [180 pages of] records[,]” it is unclear how the School requires 36 hours to complete the tasks. The School must clarify this matter. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Conclusion Accordingly, the School is ordered to provide the requestor 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

Assistant Superintendent Edward Donoghue SPR21/2608 Page 3 October 21, 2021 pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden Transparency