Malden Transparency v. Berkshire Hills Regional School District (SPR 20212678)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 25, 2021 SPR21/2678 Peter W. Dillon, Ed. D. Superintendent Berkshire Hills Regional School District 50 Main Street, P.O. Box 617 Stockbridge, MA 01262 Dear Superintendent Dillon: I have received the petition of Malden Transparency appealing the response of the Berkshire Hills Regional School District (District) 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: For the time period January 1, 2019 through the date [the District] 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 District. See SPR21/2628 Supervisor of Records Determination (October 12, 2021). In my October 12th determination, I found that the District had established good cause for a time extension of 30 business days, that the District may assess a fee for segregation and redaction, and that the District may assess a fee limited to $75.00 per hour for attorney review. The District provided Malden Transparency with a fee estimate on October 7, 2021. Previous appeal This request was the subject of a previous appeal. See SPR21/2647 Determination of the Supervisor of Records (October 13, 2021). The District provided a response on October 7, 2021. Unsatisfied with the District’s response, Malden Transparency petitioned this office and this appeal, SPR21/2678, was opened as a result. 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. Peter Dillon SPR21/2678 Page 2 October 25, 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. 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 District’s October 7th Fee Estimate In its October 7, 2021 fee estimate, the District states that it “is in possession of approximately 100 pages that are responsive to [the] request for invoices from MHTL District’s

Supt. Peter Dillon SPR21/2678 Page 3 October 25, 2021 law firm, Murphy, Hesse, Toomey & Lehane, LLP].” The District 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 District 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 District 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 District estimates a total of 5 hours. 5 hours multiplied by $75 per hour yields a fee estimate of $375.00. The actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process. As noted above, the District 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 District’s October 7th response, it is unclear why the District requires the 5 hours to produce approximately 100 pages at 1 minute per page for segregation and redaction. This office continues to encourage Malden Transparency and the District 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 District 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden Transparency Doreen Twiss