Malden Transparency v. Somerville, City of - Public Schools (SPR 20212651)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 25, 2021 SPR21/2651 Joseph Tringale Records Access Officer Somerville Public Schools 8 Bonair Street Somerville, MA 02145 Dear Mr. Tringale: I have received the petition of OpenMalden.com appealing the response of the Somerville 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, OpenMalden.com 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 SPR21/2627 Supervisor of Records Determination (October 7, 2021). In my October 7th 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 OpenMalden.com with a fee estimate on October 7, 2021. Objecting to the fees, OpenMalden.com 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

Joseph Tringale SPR21/2651 Page 2 October 25, 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 115 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 [OpenMalden.com] seek[s] must be reviewed to determine which exemption or privilege applies.” The School further explains the following:

Joseph Tringale SPR21/2651 Page 3 October 25, 2021 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 records [OpenMalden.com] 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. . . . 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 1 hour and 55 minutes. In accordance with 950 CMR 37.02(2)(m)(1) [OpenMalden.com] will not be charged for the first two (2) hours of those services. The [School] reserves the right to charge a fee if its review and redaction takes more than two (2) hours. 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. Current Appeal In the appeal petition, OpenMalden.com contends, among other things, that “[t]he RAO must quantify any cost estimate with specific records,” that “[t]he RAO cannot charge for records organization,” and that the School has “failed to follow M.G.L. c66, § 10.” In this case, the School has not charged a fee. Based on the foregoing, it is unclear what the basis of OpenMalden.com’s appeal is. OpenMalden.com is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). Accordingly, OpenMalden.com must describe specific objections to the School’s response. Conclusion Based on the above, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: OpenMalden.com