Malden Transparency v. Fairhaven, Town of - Public Schools (SPR 20212625)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 22, 2021 SPR21/2625 Melissa Bouchard Records Compliance Officer Fairhaven Public Schools 128 Washington Street Fairhaven, MA 02719 Dear Ms. Bouchard: I have received the petition of Malden Transparency appealing the response of the Fairhaven 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 “[a]ll billing statements and/or invoices from Murphy, Hesse, Toomey & Lehane, LLP, . . .[,]” and “[a]ll documents evidencing payments made to Murphy, Hesse, Toomey & Lehane, LLP. . . . For the time period January 1, 2019 through the date you respond with the responsive documents[.]” On October 6, 2021, the School provided a fee estimate. Objecting to the fees, the requestor petitioned this office and this appeal, SPR21/2625, 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). 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). 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

Melissa Bouchard SPR21/2625 Page 2 October 22, 2021 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 “. . . possesses records responsive to [the] request. There [are] several documents that fall within your search parameters. The good faith fee estimate associated with the compilation, review, possible redaction, and production of these records is as follows: Review and redaction time 2 hours $25.00 per hour $50. Total estimated cost $50.” The School explains, “[e]ach document must be reviewed before it may be provided to you due to the strong likelihood that they contain information exempt under [Exemption (a)] . . . because it implicates student record/education record information under 603 CMR 23.00 and the Family Educational Rights and Privacy Act (‘FERPA’).” The School further explains, “[t]his estimate is based on 2 hours spent reviewing and redacting the responsive documents. This number is based on the need to carefully read each page, make the necessary determinations regarding whether the record contains exempt information, redact any confidential information contained in the records if found, and the possibility that other individuals may need to be consulted throughout this process. In the event the actual time to review and redact the requested records is less than the estimate provided, the [School] will refund a portion of your payment accordingly. Similarly, in the event the actual time to search for, compile, review, and redact the requested records is greater than the estimate provided, the [School] reserves the right to require you to pay an additional fee before releasing any responsive records. . . .” Although the School states that it requires two hours to review and redact the documents, it is not clear how many hours will be spent reviewing and redacting the responsive documents. It is additionally uncertain the number of records the School is looking to review and redact and the number of pages there are. Also, it is unclear how many minutes per page the School requires to review the responsive records. The Regulations provide that a municipality with a population of 20,000 or fewer may assess a fee for the first two hours of work performed. See 950 C.M.R. 32.07(2)(m)(2). Population data shall be determined by the decennial U.S. Census and it is the burden of the municipal RAO to provide such information in its response. 950 C.M.R. 32.07(2)(m)(2)(i-ii). The School’s fee estimate does not make clear if this is the case. As such, the School must clarify this issue. 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

Melissa Bouchard SPR21/2625 Page 3 October 22, 2021 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden Transparency