Malden Transparency v. Dedham, Town of - Public Schools (SPR 20212792)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 8, 2021 SPR21/2792 Amy Hicks Executive Assistant to the Superintendent Dedham Public Schools 100 Whiting Avenue Dedham, MA 02026 Dear Ms. Hicks: I have received the petition of Malden Transparency appealing the response of the Dedham 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 26, 2021, Malden Transparency requested: 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 26, 2021, the School informed Malden Transparency that it was in possession of approximately 195 pages of invoices that are responsive to the request. A fee estimate for the cost of producing the invoices was provided with its September 26th 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 8, 2021 petition from the School. See SPR21/2652 Supervisor of Records Determination (October 18, 2021). In my October 18th 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. Fee estimate – municipalities A municipality may assess a reasonable fee for the production of a public record except 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 Hicks SPR21/2792 Page 2 November 8, 2021 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 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). While the School may assess a fee for segregation and redaction of the attorney-client privilege material, and personally identifiable information of students under federal and state law, the School may not charge for the time it takes to redact material under Exemption (c) without approval by the 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). The School estimates, “…approximately 1 minutes per page to complete [the segregation and redaction].” It is estimated that the review, segregation and redaction will take 3.25 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 $245…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

Amy Hicks SPR21/2792 Page 3 November 8, 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 $93.75 to begin the process. Current appeal Based on the School’s October 8th petition 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. 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