Malden Transparency v. Methuen Public Schools (SPR 20212640)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 15, 2021 SPR21/2640 Brandi Kwong, Ed.D Superintendent of Schools Methuen Public Schools 10 Ditson Place Methuen, MA 01844 Dear Supt. Kwong: I have received the petition of OpenMalden.com appealing the response of the Methuen 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 16, 2021, OpenMalden.com requested the following: For the time period January 1, 2019 through the date [the School] respond[s] with the responsive documents. Please provide the following[:] [1] All billing statements and/or invoices from [a named law firm, and;] [2] All documents evidencing payments made to [a named law firm]. Previous petition This request was the subject of a previous fee and time petition. See SPR21/2632 Supervisor of Records Determination (October 13, 2021). Please refer to the determination in SPR21/2632 for an analysis of this issue. On October 7, 2021, the School responded to OpenMalden.com’s request, including a fee estimate. Unsatisfied with the School’s response, OpenMalden.com petitioned this office and this appeal, SPR21/2640, was opened as a result. 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). 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

Supt. Brandi Kwong SPR21/2640 Page 2 October 15, 2021 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). 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). The School’s October 7th Response In its October 7, 2021 response, the School stated that: The records sought in the request need to be reviewed, and potentially redacted, for several reasons…First, the request likely contain[s] the content of discussions between the [School] and its attorneys…Second, the records contain personal identifying information of public school students. . . [therefore] these records should be deemed exempt from Public Records Law disclosure under Exemption (a)…Finally, these invoices require redactions in accordance with the exemption set for at G. L. c. 4, § 7(26)(c)…[because] they contain information concerning employees that relates to performance or complaints, evaluations of employees, requests for accommodations, leaves of absences, and discipline of employees…In this case, the Office of District Counsel is the lowest paid employee with the necessary skill to determine whether the…records Open Malden seeks [need] to be redacted…The [School] capped its Counsel hourly rate $75 per hour to complete the review. 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 invoices Open Malden seeks. As a result, the [School] estimates a total of four (4) hours will be required. In accordance with 950 CMR 37.02(2)(m)(l), Open Malden will not be charged for the fast two (2) hours of those services. Two (2) hours multiplied by $75 per hour yields a fee estimate of $150.00. Current Appeal In its October 7th appeal, OpenMalden.com states the following:

Supt. Brandi Kwong SPR21/2640 Page 3 October 15, 2021 1. The RAO must quantify any cost estimate with specific records, with specific costs associated with only legally allowed charges…[;] 2. The RAO cannot charge for records organization, only search, segregation and redaction which comports with specific exemptions[;] 3. The RAO has proposed a $75 per hour charge, this is not allowed under the public records law, the maximum allowed is $25[;] 4. The RAO has proposed 1 minute to segregate and redact. This time estimate is at least double the amount of time required to perform any statutorily required segregation and redaction. . . . . OpenMalden petitions the [Public Records Division] to reduce the allowed time to segregate and redact to a maximum of 30 seconds per page…[;] 5. The RAO is requesting time be allowed for redaction of billing records. OpenMalden petitions the [Public Records Division] to disallow any segregation and redaction to take place on any billing record where hundreds of pages of records already obtained from dozens of other districts from the same request substantiate that municipal check run records contain no privileged documents and that MHT&L’s standard billing practice is to exclude any privileged information therein (students last names are not used, and the recommendations/opinions of counsel are not reflected therein)… I find it unclear how the School arrived at its estimation that the necessary search, segregation, and redactions will take one minute per page and subsequently four total hours. The School must clarify this. Please be advised the School received approval to charge for segregation and redaction, to the extent the responsive records contain the exempt information. See SPR21/2632 Determination of the Supervisor of Records (October 13, 2021). Conclusion Accordingly, the School is ordered to provide OpenMalden.com with a response to the request, in 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: OpenMalden.com