Malden Transparency v. Mashpee, Town of - Public Schools (SPR 20212664)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 22, 2021 SPR21/2664 Patricia M. DeBoer Superintendent Town of Mashpee Public Schools 150A Old Barnstable Road Mashpee, MA 02649 Dear Superintendent DeBoer: I have received the petition of Malden Transparency (aka OpenMalden.com) appealing the response of the Maspee 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]. The School provided Malden Transparency with a response, including a fee estimate for $165.00. Objecting to the fees, including the hourly rate and time spent by the School’s Legal Counsel for segregation and redaction of the invoices, Malden Transparency petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Previous Petition This request was the subject of a petition from the School. See SPR21/2648 Supervisor of Records Determination (October 18, 2021). In my October 18th determination, I found that the School had established good cause for a time extension of 30 business days, In addition, I found 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. 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

Superintendent Patricia DeBoer SPR21/2664 Page 2 October 22, 2021 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). 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 School’s Fee Estimate In its fee estimate, the School produced, “…Town of Mashpee MUNIS System lists of paid invoices and copies of Murphy, Hesse, Toomey & Lehane, LLP (MHTL) invoices for the period requested. The [School] is in possession of approximately 132 pages that are responsive to [Malden Transparency’s] request for invoices from MHTL. The [School] has no other

Superintendent Patricia DeBoer SPR21/2664 Page 3 October 22, 2021 records.” 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.” In its response, the School cites the attorney-client privilege, and Exemption (a) along with federal and state student records law to protect personally identifying information of public school students and/or parents. In addition, the School cites Exemption (c) of the Public Records Law to protect, “ information concerning employees that relates to performance or complaints, evaluations of employees, leaves of absences, and discipline of employees.” 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 [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. . . . 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 2.2 hours. 2.2 hours multiplied by $75 per hour yields a fee estimate of $165.00. The actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process. The School also advised Malden Transparency, “…your fee estimate may be reduced if you narrow the scope of your request (i.e. the period of time for the records you seek).” As noted above, on October 18th, 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. Additionally, I granted the School an extension of time of 30 days to produce the records, with said time starting once the School receives payment. Conclusion As set forth above, I find the School has met its burden in responding to Malden Transparency’s request at this time. Any revision to the request would result in the requirement to issue a revised estimate. Accordingly, I will consider this administrative appeal closed.

Superintendent Patricia DeBoer SPR21/2664 Page 4 October 22, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden Transparency