Open Commonwealth v. Fairhaven, Town of - Public Schools (SPR 20212760)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 27, 2021 SPR21/2760 Melissa Bouchard Fairhaven Public Schools 128 Washington Street Fairhaven, MA 02719 Dear Melissa Bouchard: I have received your petition on behalf of the Fairhaven Public Schools (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 this petition to the requestor. Id. On October 12, 2021, Open Commonwealth requested the following: 1. Any and all public records requests seeking public records of your 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. 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 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

Melissa Bouchard SPR21/2760 Page 2 October 27, 2021 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). 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).

Melissa Bouchard SPR21/2760 Page 3 October 27, 2021 Current Pettion In its October 21st pettion, the School requests that the Supervisor “…approve the [School’s] petition to charge for time spent segregating and redacting a public records request received on October 12, 2021.” The School notes “…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 [School] understands to favor findings of non-disclosure. See SP R 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 to assess fees for time spent segregating and redacting records that fall within statutory exemptions beyond Exemption (a) of G.L. c. 4, §7(26) given the likelihood that the aforementioned categories of information need to be redacted. Moreover, the [School] seeks to charge a rate in excess of $25 per hour. Specifically, the [School] seeks approval to charge an hourly rate of $75 per hour. The redaction of the requested documents requires both knowledge in law and knowledge of the facts at issue. Accordingly, this redaction cannot be perfonned 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 infonnation falling under the attorney-client privilege that must be redacted.” The School notes that “[t]he hourly rate associated with the lowest paid employee who has the necessary skill required to perform this task is $235 per hour. However, the [School] 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

Melissa Bouchard SPR21/2760 Page 4 October 27, 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). Further, I find the School has established how it may assess a fee for the time spent to segregate and redact these requested records at $75.00 per hour. Please note, Open Commonwealth 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