Commonwealth Transparency v. Somerville, City of - Public Schools (SPR 20212782)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 4, 2021 SPR21/2782 David Shapiro, Esq. Assistant City Solicitor City of Somerville 93 Highland Avenue Somerville, MA 02143 Dear Attorney Shapiro: I have received the petition of Commonwealth Transparency appealing the response of the City of Somerville (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Commonwealth Transparency requested: for the period January 1, 2016 through the date you respond with the responsive records, please provide the following: 1. Any and all public records requests seeking public records of [your School], and /or district; 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; and, 4. All responses, appeals, fee requests and responsive records resulting from the requests in #1 above. On October 21, 2021, the City provided a log of all public record requests received by the City in connection to the City’s Public Schools. The City’s response states: “[p]ortions of the log have been redacted pursuant to exemptions (a) and (c) of the Massachusetts Public Records Law. Information such as personal email addresses, home addresses, has been redacted, because their disclosure would constitute an unwarranted invasion of personal privacy. Information identifying a minor child, child’s parent or other confidential information has been redacted as they are exempt from disclosure by statute. 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

David Shapiro, Esq. SPR21/2782 Page 2 November 4, 2021 In response to the remainder of your request, with respect to requests, responses, and other documents identified, pursuant to 950 CMR 32.06, I write to request you to provide the specific words search you are asking the IT [D]epartment to perform in order to assist this [D]epartment in promptly locating any requested records. The City does not maintain a database limited to the School Department public records responses. Any search would be limited to City of Somerville emails (@somervillema.gov), not School Department emails (@k12.somerville.ma.us). I expect that you will be receiving a separate response from the School Department.” On October 22, 2021, the City provided a fee estimate for $200.00 which the City asserts, “…does not necessarily include all requests directed to the [School], which will provide a separate response.” As a result of the October 22nd fee estimate, Commonwealth Transparency petitioned the Supervisor of Records (Supervisor), and this appeal was opened. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Fees – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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,

David Shapiro, Esq. SPR21/2782 Page 3 November 4, 2021 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 City’s October 22, 2021 fee estimate In its October 22nd fee estimate, the City indicates, “IT will need to do a search query to make sure there is a complete record of the responses…Documents need to be reviewed for responsiveness, potential redactions, and attorney-client privilege.” The City estimates: “IT will search and segregate: 40 requests @ 15 minutes per request = 4 hours; 4 hours x $25 per hour (actual hourly rate exceeds $25/hour) = $100; Law Department [e]stimated time to search and segregate, and redact for attorney-client privilege and necessary redactions: 6 hours; 6 hours x $25 per hour (actual hourly rate exceeds $25.00/per hour) = $50.00 Subtotal: $250 Less 1st 2.0 hours of search and segregation time…$50.00 Total estimated Fee $200.00” Based on the City’s estimate, it is unclear why both IT and Law Department are assessing a fee for search and segregation. The City must clarify this issue. In addition, the City is assessing a fee for segregation time for both IT and the Law Department. The City is advised that segregation is defined as, “[t]he time used to review records to determine what portions are subject to redaction or withholding under M.G.L. c. 4, § 7, clause Twenty-sixth or other legally applicable privileges. Segregation time shall not include time expended to review record for accuracy and correct errors.” See 950 C.M.R. 32.02. It is unclear whether IT personnel are reviewing the records for exemptions and privileges under the Public Records Law. The City must clarify this issue.

David Shapiro, Esq. SPR21/2782 Page 4 November 4, 2021 As to the City’s fees for segregation and redaction of exempt materials, the City is advised, it shall not assess a fee 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). While the City has cited the attorney-client privilege as content that it will segregate and redact from the records, it has not explained what other content the City is segregating. Based on the City’s response, it is unclear what exemptions it is claiming to withhold content from the records, other than the common law attorney-client privilege. The City must clarify this issue. Further, the City must clarify the amount of time to complete the tasks necessary to produce the responsive records. Based on the City’s October 21st response and its October 22nd fee estimate, I find the City has not met its burden in responding to this request. Order Accordingly, the City is ordered to provide Commonwealth Transparency with a response to the request, 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: Commonwealth Transparency