Malden Transparency v. Hingham, Town of - Public Schools (SPR 20212641)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 20, 2021 SPR21/2641 Dr. Gary E. Maestas Interim Superintendent Hingham Public Schools 220 Central Street Hingham, Massachusetts 02043 Dear Dr. Maestas: I have received the petition of Malden Transparency appealing the response of the Hingham 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, Malden Transparency requested 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 SPR21/2634 Supervisor of Records Determination (October 13, 2021). In my October 13th 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 Malden Transparency with a fee estimate on October 7, 2021. Objecting to the fees, Malden Transparency appealed, and this case was opened as a result. 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 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

Dr. Gary E. Maestas, RAO SPR21/2641 Page 2 October 20, 2021 municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 School’s October 7th Fee Estimate In its October 7, 2021 fee estimate, the School states that it “is in possession of approximately 375 pages that are responsive to [the] request for invoices from MHTL [the School’s law firm, Murphy, Hesse, Toomey & Lehane, LLP].” The School 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 School further explains the following: In this case, the Office of District Counsel is the lowest paid employee with the necessary skill to determine whether the attorney-client privilege requires certain portions of the

Dr. Gary E. Maestas, RAO SPR21/2641 Page 3 October 20, 2021 records [Malden Transparency] 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. . . . Retrieving the documents by the district from the system to be scanned to counsel for review and redaction will take approximately 285 minutes or 4.75 hours. There are 55 invoices averaging approximately 3 – 4 pages per invoice. Some of the invoices are with thin the accounts payable system, but several are hard copy in archive when the system had a brief failure and was not uploading properly. This cost for this effort would be for 2.75 hours at $25 per hour or $68.75. 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 3.25 hours. [Malden Transparency] will not be charged for the first two (2) hours of those services. 1.25 hours multiplied by $75 per hour yields a fee estimate of $93.70. The total fee estimate for this effort is $162.50 As noted above, the School was previously approved to assess a fee for segregation and redaction, and to assess a fee limited to $75.00 per hour for attorney review. Based on the School’s October 7th response, it is unclear why the School requires the amount of time listed above to produce the requested records by scanning or uploading of the “55 invoices averaging approximately 3 – 4 pages per invoice.” The School must provide further information on the details regarding the tasks involved, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The School must clarify these matters, including the time that is needed to perform segregation and redaction as required by law. This office continues to encourage Malden Transparency and the School to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the School is ordered to provide Malden Transparency with a response to the request, provided 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.

Dr. Gary E. Maestas, RAO SPR21/2641 Page 4 October 20, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden Transparency