Malden Transparency v. Acushnet, Town of - Public Schools (SPR 20212657)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 21, 2021 SPR21/2657 Kelly Benevides Executive Administrative Assistant to the Superintendent Recording Secretary for the Acushnet School Committee 130 Main Place Acushnet, MA 01844 Dear Ms. Benevides: I have received the petition of OpenMalden.com appealing the response of the Acushnet 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. 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 SPR21/2656 Supervisor of Records Determination (October 12, 2021). Please refer to the determination in SPR21/2656 for an analysis of this issue. On October 8, 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, SPR21/2657, 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

Kelly Benevides SPR21/2657 Page 2 October 21, 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 8th Fee Estimate In its October 8, 2021 fee estimate, the School states that it “is in possession of approximately [60] 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: 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 [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. Based on the School’s October 8th response, it is unclear why the School requires 2 hours to review 60 pages at a rate of 1 minute per page. 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.

Kelly Benevides SPR21/2657 Page 3 October 21, 2021 This office continues to encourage OpenMalden.com 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 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