Malden Transparency v. Amherst-Pelham Regional School Districts (SPR 20212800)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 8, 2021 SPR21/2800 Debbie Westmoreland Director of Communication and Operations Amherst-Pelham Regional School District 170 Chestnut Street Amherst, MA 01002 Dear Ms. Westmoreland: I have received the petition of Malden Transparency appealing the response of the Amherst-Pelham Regional School District (District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 26, 2021, the requestor sought “[a]ll billing statements and/or invoices from Murphy, Hesse, Toomey & Lehane, LLP, . . .[,]” and “[a]ll documents evidencing payments made to Murphy, Hesse, Toomey & Lehane, LLP. . . . For the time period January 1, 2019 through the date you respond with the responsive documents[.]” Previous appeal This request was the subject of a previous appeal. See SPR21/2571 Determination of the Supervisor of Records (October 19, 2021). In my October 19th determination, I directed the District to clarify portions of its fee estimate. Accordingly, the District was ordered to provide the requestor with a response. Subsequently, the District provided a response on October 25, 2021. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR21/2800, was opened as a result. 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 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

Debbie Westmoreland SPR21/2800 Page 2 November 8, 2021 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 District’s October 25th response In its October 25, 2021 estimate, the District explains that “[t]he records . . . are not available in electronic format, . . . and need to be pulled from storage, be reviewed, and potentially redacted, and scanned into an electronic format. There are several reasons for potential redaction including: 1. The invoices . . . are for legal services provided by MHTL to the District. Those records likely contain the content of discussions between the District and its attorneys, for the purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney‐client privilege. . . . . 2. The records contain personally identifying information of public‐school students, which is not subject to disclosure under the Public Records Law based upon Exemption (a). . . . Billing statements and invoices between the District and MHTL contain personally identifying information of public‐school students who enjoy mandated confidentiality; indeed, such documents, if released, would reveal the identities, disabilities and information on their educational programming.” The District further explains that “. . . the hourly rate of the lowest paid employee with the necessary skill to determine whether the attorney-client privilege requires certain portions of the records you seek to be redacted is $44.39; therefore, the District would charge the maximum allowable rate of $25 per hour. . . . Each page of the records you seek must be reviewed to determine which exemption or privilege applies. . . . The District estimates that it will take approximately 1 minute per page to complete the review, segregation, and potential redaction of the records sought in your request. As a result, the District estimates a total of 7.5 hours. . . . [Y]ou will not be charged for the first two (2) hours of those services. 5.5 hours multiplied by $25 per hour yields a fee estimate of $137.50. . . .” Based on the District’s response, although it states that it requires “1 minute per page to complete the review, segregation, and potential redaction of the records[,]” it is unclear the number of records the District is looking to redact and the number of pages there are. The District must clarify this issue.

Debbie Westmoreland SPR21/2800 Page 3 November 8, 2021 Conclusion Accordingly, the District is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Malden Transparency