Open Commonwealth v. North Middlesex Regional School District (SPR 20212722)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 25, 2021 SPR21/2722 Robin Eibye Records Access Officer North Middlesex Regional School District 66 Brookline Street Townsend, MA 01469 Dear Ms. Eibye, On October 18, 2021, I received your petition on behalf of the North Middlesex Regional School District (School) seeking permission to charge for time spent segregating or redacting responsive records as well as a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(c), (d)(iv). As required by law, the School furnished a copy of its petition to the requestor, Open Commonwealth. Id. On October 12, 2021, Open Commonwealth requested: 1. Any and all public records requests seeking public records of [the] school(s), and/or district(s). 2. All metadata from the requests in #1 above including all contact information of the requestor, including but not limited to emails and text messages. 3. All electronic communications regarding #1 above including but not limited to emails and text messages. 4. All responses, appeals, fee requests and responsive records resulting from the requests in #1 above. Petitions 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 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

Robin Eibye SPR21/2722 Page 2 October 25, 2021 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 purpose. G. L. c. 66, § 10(d)(iv). 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).

Robin Eibye SPR21/2722 Page 3 October 25, 2021 Current Petition In its October 18th pettion, the School requests that the Supervisor of Records approve “…[the School’s] petition to charge for time spent segregating and redacting a public records request received on October 12, 2021.” The School “…understands that pursuant to G.L. c. 66, § 10(d)(iii), it cannot assess a fee for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by [this]office. The [School] intends, in actual and good faith, to comply with the request. However, the requested records must be redacted where many of the responsive documents will meet the following inclusive, not exhaustive, exemptions set forth in G.L. c. 4, § 7(26): • Exemption (c) – The communications reference information which, if disclosed, constitutes an unwarranted invasion of personal privacy related to certain individuals. In particular, the requested e-mails contain personal contact information for private citizens which the District understands to favor findings of non-disclosure. See SPR 13/077 (…personal email addresses, which are generally not listed within any sort of directory or available by any other means of a public search, similar in many respects to mobile phone or unlisted phone numbers, favor a finding of non-disclosure.)…. • Attorney-Client Privileged Communications – The requested e-mails may contain references to attorney-client privileged communications that must be redacted to preserve the privilege.” In addition, the School “…seeks approval to charge an hourly rate of $75 per hour.” The School posits that “[t]he redaction of the requested documents requires both knowledge in law and knowledge of the facts at issue. Accordingly, this redaction cannot be performed by a District employee; rather, it must be completed by legal counsel for the [School]. In particular, the records requested must be reviewed and redacted by an individual who is knowledgeable, well-versed and trained in the following subject areas: • Case law responsive to Exemption (c), and specifically, how the Supervisor of Public Records and courts have interpreted the type of information that may be redacted and applying those decisions to the requested records; • Attorney-client privilege, and specifically, the application of Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007) and other cases as to the what constitutes information falling under the attorney-client privilege that must be redacted.” The School notes that “…the hourly rate associated with the lowest paid employee who has the necessary skill required to perform this task is $235 per hour. However, it is willing to lower the hourly rate to $75 per hour.” The School further contends that “[t]he purpose of assessing fees is to simply offset the costs that will be charged to the [School] in responding to this request and ensure that the [School] can properly redact information as required by G.L. c. 4, §7(26). Moreover, the [School] represents that it is more than willing, consistent with its

Robin Eibye SPR21/2722 Page 4 October 25, 2021 obligation under G.L. c. 66, § 10(b)(vii), to communicate with the requestor to suggest reasonable modifications of the scope of the request that would enable more efficient and affordable record access.” Conclusion I find the School has met its burden to explain how the request could not prudently be completed without redaction or segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). However, the School may assess an hourly rate of no more than $75.00. Please note, the requestor 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: Open Commonwealth