Malden Transparency v. Sharon, Town of - Public Schools (SPR 20212741)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 3, 2021 SPR21/2741 Meg Dussault, Ed.D Records Access Officer Town of Sharon Public Schools 75 Mountain Street Sharon, MA 02067 Dear Dr. Dussault: I have received the petition of Malden Transparency appealing the response of the Town of Sharon 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 27, 2021, the requestor sought 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]. On September 30, 2021, the School provided Malden Transparency with four “invoice browse sheets evidencing payment made to Murphy, Hesse, Toomey & Lehane, LLP (MHTL). The School also informed Malden Transparency that it is in possession of approximately 43 pages of invoices from MHTL that are responsive to the request. A fee estimate for the cost of producing the invoices was provided with its September 30th response. As a result of the fee estimate, Malden Transparency petitioned the Supervisor of Records (Supervisor), and the prior appeal, SPR21/2534 was opened. Previous petition This request was also the subject of an October 5, 2021 petition from the School. See SPR21/2599 Supervisor of Records Determination (October 8, 2021). In my October 8th determination, I found that the School had established good cause for a time extension of 30 business days, 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

Dr. Meg Dussault SPR21/2741 Page 2 November 3, 2021 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 September fee estimate In its fee estimate, the School indicates, “[e]ach page of the records…must be reviewed to determine which exemption or privilege applies.” The School asserts that the records likely contain content that includes, attorney-client privilege material, personally identifying information of students, information regarding employees that relates to performance or complaints, evaluations of employees, leaves of absences and discipline of employees. Therefore, the School cites the attorney-client privilege, Exemption (a) and federal and state laws regarding student records and personally identifiable information of students, and Exemption (c). The School estimates, “…approximately 5 minutes per page to complete [the segregation and redaction].” It is estimated that the review, segregation and redaction will take 3 hours at $75.00 per hour; however, the School will not charge for the first two hours of that time. See G. L. c. 66, § 10(d)(iii). The School asserts, “…the Office of District Counsel is the lowest paid employee with the necessary skill required to determine whether the attorney-client privilege requires certain portions of the records [Malden Transparency] seek 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. Counsel’s hourly rate is $240…the [School] will request that the Supervisor allow it to charge $75 per hour to complete the review.” The cost is estimated as 1 hour of time at $75 per hour for a total of $75.00 to perform the review, segregation and redaction; however, the School states, “[t]he actual fee to produce these

Dr. Meg Dussault SPR21/2741 Page 3 November 3, 2021 records may vary based on the actual time spent to complete the necessary review and redaction process.” The School has requested a check for $75.00 to begin the process. Current appeal The basis of Malden Transparency’s current appeal is the School’s October 19, 2021 response regarding the 1 minute of time to review, segregate and redact exempt material. In its September 30th fee estimate, the School’s estimation of the time per page to review, segregate and redact exempt material was based on 5 minutes per page. In my October 14th determination of the prior appeal, SPR21/2534, I found that it was unclear why the School needs 5 minutes per page to do so. I ordered the School to clarify this issue and provide Malden Transparency with a supplemental response regarding this issue. On October 19, 2021, the School’s response asserted, “[t]he [School] is ordered to explain the estimation of 5 minutes per page to review, segregate and redact exempt material. It is clear that the time of 5 minutes was an overestimation. The correct time allotted per page should be 1 minute per page.” Based on the School’s October 19th supplemental response pertaining to its estimation of 1 minute per page to review, segregate and redact exempt material, I find that the School has met it burden in responding to the request and the Supervisor’s October 14th determination. Furthermore, as noted above, the School was previously approved to assess a fee for segregation and redaction, to assess a fee limited to $75.00 per hour for attorney review and was granted an extension of thirty (30) days to provide the records. Please note, the time may begin to run once the School receives payment. G. L. c. 66, § 10(c). Conclusion As set forth above, I find the School has met its burden in responding to Malden Transparency’s request. Any revision to the request would result in the requirement to issue a revised estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden Transparency