Malden Transparency v. Ashland, Town of - Public Schools (SPR 20212610)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 13, 2021 SPR21/2610 Kathy Silva Director of Student Services Ashland Public Schools 87 West Union Street Ashland, MA 01721 Dear Director Silva: I have received your petition on behalf of the Ashland Public Schools (School) requesting an extension of time to produce records, a waiver of statutory limits on fees that may be assessed in responding to the request, permission to charge for time spent segregating or redacting responsive records, and relief from the obligation to respond to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the School furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On September 26, 2021, OpenMalden.com requested the following: “[f]or the time period January 1, 2019 through the date you respond with the responsive documents, please provide the following; 1. All billing statements and/or invoices from [a named law firm]. 2. All documents evidencing payments from [a named law firm].” Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; 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

Dir. Kathy Silva SPR21/2610 Page 2 October 13, 2021 (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Extension of Time to Produce Responsive Records In its October 6, 2021 petition, the School states the following: “Open Malden appears to have made an identical request to every school district in the state. As a result, MHTL will have to complete the necessary redactions for each of the districts it represents. It is not possible for MHTL to review and redact the bills of all its clients within 10 business days. Therefore, [the School] hereby petitions for an extension of time to respond to that portion of the request that seeks legal invoices given that the scope of redaction required to prevent unlawful disclosure is significant. The [School] will be unable to produce the records during normal business hours of operation without an extension in light of the fact that its attorneys will have to respond to similar requests for other districts and only counsel is able to review the bills to determine the application of the attorney-client privilege.” “Pursuant to M.G.L. c. 66, section 10(c), the [School] requests an additional 30 business days beyond the time specified under the statute (25 business days) – for a total of 55 business days from the date of receipt payment for the work, to respond to the portion of the request that seeks legal invoices.” I find in light of the need to collect and segregate the request, as well as the capacity of the School to produce the request without an extension, the efforts already undertaken by the School to provide responsive records, and that the request is part of a series of requests from the same requestor, the School has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The School is granted an extension of 30 business days. Please note the time may begin to run once the School receives payment. G. L. c. 66, § 10(c). Petition to Assess Fees 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

Dir. Kathy Silva SPR21/2610 Page 3 October 13, 2021 (Supervisor) 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). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates 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 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).

Dir. Kathy Silva SPR21/2610 Page 4 October 13, 2021 Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In its October 6, 2021 petition, the School states that the “records sought in the request need to be reviewed, and potentially redacted, for several reasons… “First, the request seeks invoices for legal services provided by MHTL to the [School]. Those records likely contain the content of discussions between the [School] and its attorneys, for purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney-client privilege. . . . Second, the records contain personal identifying information of public school students. . . [B]illing statements and invoices between the [School] and MHTL contain personal identifying information of public school students who enjoy mandated confidentiality; indeed, such documents, if released, would reveal the identities, disabilities and information on their educational programming. Further, since MHTL is counseling the [School] on the educational services and programming that is providing to students, especially special education students, these records should be deemed exempt from Public Records Law disclosure under Exemption (a) because . . . state and federal regulations compel the [School] to protect educational records from disclosure. Specifically, they are protected by the Federal Education Rights Privacy Act, Massachusetts General Law, Chapter 71, Section 34A to 34H, and 603 CMR 23.00 et. seq. At the very least, the records will need to be reviewed to determine if they contain any student information, and then any necessary redactions will need to be made. . . . Finally, these invoices require redactions in accordance with the exemption set for at G. L. c. 4, § 7(26)(c). . . In accordance with the exemption, the [School] needs to review and redact the billing statements to the extent they contain information concerning employees that relates to performance or complaints, evaluations of employees, requests for accommodations, leaves of absences, and discipline of employees. . . Furthermore, the [School] seeks that the Supervisor allow it to charge for the redactions required under Exemption (c) for the reasons outlined.” Based on the School’s petition, I find the School has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the School may assess a fee for the segregation and redaction of such exempt material.

Dir. Kathy Silva SPR21/2610 Page 5 October 13, 2021 Fee in Excess of $25.00 per hour In its petition, the School also states the following concerning its request to charge a fee in excess of $25.00 per hour: “In this case, the Office of District Counsel is the lowest paid employee with the necessary skill to detennine whether the attorney-client privilege requires certain portions of the records you seek to be redacted. While perfonning that review, Counsel can also determine whether other exemptions apply, rather than have a separate employee review the records at additional cost. Counsel’s hourly rate is $225. Notwithstanding that rate, the [School] will request that the Supervisor allow it to charge $75 per hour to complete the review.” I find the School has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). I find the School may assess a fee limited to $75.00 per -- hour for attorney review. Request for Relief In its petition, the School “requests that [this office] determine, pursuant to G. L. c. 66, § 10(c), that this request is part of a series of requests that is intended to harass the [School] (by overburdening counsel for the district) and thereby relieve the [School] of its obligation to provide copies of the records sought.” The School provides the following information: “Open Malden appears to have made public records requests, identical to the instant request, to every school district in the state. Each of these requests seeks records related to Murphy, Hesse, Toomey & Lehane, LLP (“MHTL”). MHTL represents the [School] and also represents many other school districts in the Commonwealth, including one particular district that is currently engaged in litigation, in multiple forums, with the individual behind Open Malden. Given the targeted nature of Open Malden’s request and the parties involved, the request does not appear to have been made in good faith, or for any genuine public purpose, or in the public interest. Rather, on its face, it seems that the purpose of this request, as part of a series of requests issued to other districts represented by MHTL, is to overwhelm the law firm that represents the [School], and thereby harass the [School], since MHTL will need to review the records sought to determine if they contain information protected by the attorney-client privilege.” Based on the information provided in the School’s petition, I find that the School has not demonstrated the requests are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c).

Dir. Kathy Silva SPR21/2610 Page 6 October 13, 2021 Conclusion Accordingly, I find the School has established good cause for a time extension of 30 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the School may assess a fee for segregation and redaction. Further, as described above, the School may assess a fee limited to $75.00 per hour for attorney review. Please note, OpenMalden.com has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: OpenMalden.com