Collins Fay-Martin v. Marshfield, Town of - Public Schools (SPR 20212679)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 18, 2021 SPR21/2679 Amy C. Scolaro Director of Special Education/Pupil Personnel Marshfield Public Schools 76 South River Street Marshfield, MA 02050 Dear Ms. Scolaro: I have received your petition on behalf of the Marshfield Public Schools (School) requesting an extension of time to produce records, a waiver of statutory limits on fees that may be assessed in responding to the request and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the School furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On September 28, 2021, Ms. Fay-Martin requested school records related to emails, letters, billing statements and other available school documents. Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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

Amy C. Scolaro SPR21/2679 Page 2 October 18, 2021 G. L. c. 66, § 10(c). The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Extension of Time to Produce Responsive Records In its October 12, 2021 petition, the School states the following: Given the volume ofrecords sought, it is not possible for the [School’s] counsel to review and redact the bills of all its clients within 10 business days. Therefore, the [School] hereby petitions for an extension of time to respond to that portion of the request that seeks legal invoices given that the scope of redaction required to prevent unlawful disclosure is significant. The [School] will be unable to produce the records during normal business hours of operation without an extension… Pursuant to M.G.L. c. 66, section 10(c), the [School] requests an additional 30 business days beyond the time specified under the statute (25 business days) - for a total of 55 business days from the date of receipt payment for the work, to respond to the portion of the request that seeks legal invoices. I find in light of the need to collect and segregate the request, as well as the capacity of the School to produce the request without an extension, the efforts already undertaken by the School to provide responsive records, and that the request is part of a series of requests from the same requestor, the School has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The School is granted an extension of 30 business days. Please note the time may begin to run once the School receives payment. G. L. c. 66, § 10(c). Petition to Assess Fees 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 (Supervisor) 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). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial

Amy C. Scolaro SPR21/2679 Page 3 October 18, 2021 purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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). 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). Current Petition In its October 12, 2021 petition, the School states that the “records sought in the request need to be reviewed, and potentially redacted, for several reasons… “First, the request seeks invoices for legal services provided by MHTL to the [School]. Those records likely contain the content of discussions between the [School] and its attorneys, for purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney-client privilege.

Amy C. Scolaro SPR21/2679 Page 4 October 18, 2021 . . . Second, the records contain personal identifying information of public school students. . . OCR complaints, billing statements and invoices between the [School] and MHTL and settlement agreements contain personal identifying information of public school students who enjoy mandated confidentiality; indeed, such documents, if released, would reveal the identities, disabilities and information on their educational programming. Further, since MHTL is counseling the [School] on the educational services and programming that is providing to students, especially special education students, these records should be deemed exempt from Public Records Law disclosure under Exemption (a) because . . . state and federal regulations compel the [School] to protect educational records from disclosure. Specifically, they are protected by the Federal Education Rights Privacy Act, Massachusetts General Law, Chapter 71, Section 34A to 34H, and 603 CMR 23.00 et. seq. At the very least, the records will need to be reviewed to determine if they contain any student information, and then any necessary redactions will need to be made. . . . Finally, these invoices require redactions in accordance with the exemption set for at G. L. c. 4, § 7(26)(c). . . In accordance with the exemption, the [School] needs to review and redact the billing statements to the extent they contain information concerning employees that relates to performance or complaints, evaluations of employees, requests for accommodations, leaves of absences, and discipline of employees.” Based on the School’s petition, I find the School has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the School may assess a fee for the segregation and redaction of such exempt material. Fee in Excess of $25.00 per hour In its petition, the School also states the following concerning its request to charge a fee in excess of $25.00 per hour: “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 you seek to be redacted. While performing that review, Counsel can also detennine whether other exemptions apply, rather than have a separate employee review the records at additional cost. Counsel's hourly rate $245 per hour. Notwithstanding that rate, the District will request that the Supervisor allow it to charge $75 per hour to complete the review.” I find the School has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). I find the School may assess a fee limited to $75.00 per hour for attorney review.

Amy C. Scolaro SPR21/2679 Page 5 October 18, 2021 Conclusion Accordingly, I find the School has established good cause for a time extension of 30 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the School may assess a fee for segregation and redaction. Further, as described above, the School may assess a fee limited to $75.00 per hour for attorney review. Please note, Ms. Fay-Martin has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Collins Fay-Martin