Malden Transparency v. Somerset-Berkley Regional School District (SPR 20212635)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 22, 2021 SPR21/2635 Robin Vaccaro Records Access Officer Somerset Berkley Regional School District 580 Whetstone Hill Road Somerset, MA 02726 Dear Ms. Vaccaro: I have received the petition of Malden Transparency appealing the response of the Somerset Berkley Regional School District (District) 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 District] 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]. On October 7, 2021, the District provided a response, including check registers evidencing payments made to Murphy, Hesse, Toomey and Lehane, LLP (MHTL). In addition, the District indicates it is “…in possession of approximately 270 pages that are responsive to [Malden Transparency’s] request for invoices from MHTL. The District has no other responsive documents.” The District provided a fee estimate to produce the records totaling $225.00. As a result of the October 7th fee estimate, Malden Transparency petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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). 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

Robin Vaccaro SPR21/2635 Page 2 October 22, 2021 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. 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 District’s October 7, 2021 Fee Estimate In its October 7th fee estimate, the District states that it is in possession of approximately 72 pages that are responsive to the request for invoices from MHTL. The District explains: [i]n this case, the Office of District Counsel (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] seeks 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. Counsel’s hourly rate is $225. Notwithstanding that rate, the District will request that the Supervisor allow it to charge $75 per hour to complete the review. To date, it is my understanding the District has not filed a petition with the Supervisor to charge in access of the maximum of $25 per hour allowed by the Public Records Law. The

Robin Vaccaro SPR21/2635 Page 3 October 22, 2021 District is advised that unless its’ hourly rate of $75 per hour was approved by the Supervisor, it cannot charge an hourly rate of $75.00. See 66, § 10(d)(iv). The District must clarify this fee. The District 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.” The District further explains the following: “….it will take District Counsel approximately 1 minute per page to complete its review, segregation, and potential redaction of the records…As a result, the District estimates a total of 5 hours. In accordance with 950 CMR 37.02(2)(m)(1) [Malden Transparency] will not be charged for the first two (2) hours of those services. Three hours multiplied by $75 per hour yields a fee estimate of $225.00…The District will not begin to review the records [Malden Transparency] seek[s] until it receives a check in the amount of $225.00.” As advised earlier in this determination, unless the District received approval from the Supervisor to charge a rate of $75.00 per hour to review, segregate and redact records under the law, it cannot assess an hourly rate more than the maximum allowed by the Public Records Law. In addition, the District cited the attorney-client privilege, attorney work-product, federal and state student records laws; as well as, Exemption (c) to segregate and redact information from the records. However, while the District may assess a fee for segregation and redaction for information required by law, to the best of my knowledge, the District did not file a petition seeking the Supervisor’s approval to assess fees for segregation and redaction of the records under Exemption (c). The District must clarify whether it received the Supervisor’s approval to charge a fee for segregation and redaction of the records under Exemption (c). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Conclusion Accordingly, the District is ordered to provide Malden Transparency with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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