Malden Transparency v. Wilmington, Town of - Public Schools (SPR 20212801)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 5, 2021 SPR21/2801 Lauren Celi Records Access Officer Assistant Director of Administration and Finance Wilmington Public Schools 161 Church Street Wilmington, MA 01887 Dear Ms. Celi: I have received the petition of Malden Transparency appealing the response of the Town of Wilmington 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 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 October 8, 2021, the School provided Malden Transparency with a response, including a fee estimate. With its October 8th response and fee estimate, the School provided Malden Transparency with the responsive Vendor/Check History and Vendor History evidencing payments made to the law firm. In its October 8th fee estimate the School indicated it is in possession of 93 pages of responsive invoices from the identified law firm which require segregation and redaction of 1.5 hours of time at $75.00 per hour for attorney review, at a total cost of $112.50. Objecting to the fees, Malden Transparency appealed, and the prior appeal SPR21/2665, was opened. In its petition, Malden Transparency contended the School charged for records organization. Previous petition On October 8th, the School filed a petition with the Supervisor for an extension of time to produce records, to assess fees for segregating and redacting records, and to assess an hourly rate in excess of $25.00 hour. See SPR21/2642 Determination of the Supervisor (October 14, 2021). 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

Ms. Lauren Celi SPR21/2801 Page 2 November 5, 2021 In my October 14th determination, I found the School established good cause for a time extension of 30 business days, was permitted to assess a fee for segregation and redaction of exempt content within the records, and may assess a fee limited to $75.00 per hour for attorney review. On October 15, 2021, the School provided a supplemental response stating, “…though [Malden Transparency’s] appeal indicates that an RAO cannot charge for records organization, the [School’s] fee petition did not include any time for records organization. The [School] has only requested to charge a fee for the time necessary to segregate and redact any responsive records.” In its fee and time petition, the School indicated, “[i]nvoices have been retrieved from the files and compiled for review.” Fee estimate – municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 October 8th fee estimate In its October 8th 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).

Ms. Lauren Celi SPR21/2801 Page 3 November 5, 2021 The School estimates, “…it will take [School] Counsel approximately 1 minute per page to complete its review, segregation, and redaction of the records sought in [the] request.” The School estimates it will take 1.5 hours of time to complete the segregation and redaction. The School did not assess any fee for the search and compilation of the records. 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.” It was estimated that, “1.5 hours multiplied by $75 per hour yields a fee estimate of $112.50.” The School also states, “[t]he actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process.” Current appeal The basis of Malden Transparency’s current appeal is the School’s October 15, 2021 response. Malden Transparency objects to the amount of time for segregation and redaction at 1- 2 minutes per page, and that it is unnecessary for the School’s Legal Counsel to perform such tasks. The requestor asks the Supervisor, “to reduce the allowed time to segregate and redact to a maximum of 15 seconds per page.” Furthermore, Malden Transparency petitions the Supervisor, “…to disallow any fee greater than $25 per hour.” In its October 15th supplemental response, the School states, “…the [School] has sufficiently quantified and explained its estimate of 1 minute per page in order to redact the responsive documents. However, by way of further explanation, the [School’s] Counsel has experience reviewing legal invoices in response to public records requests, including legal invoices in the possession of school districts. Based on the experience of the [School’s] Counsel, the [School] has determined that Counsel’s review of these types of records takes approximately 1-2 minutes per page. The [School’s] fee estimate utilizes the low end of this range.” In addressing Malden Transparency’s objection to the School utilizing its Legal Counsel to segregate and redact at $75 per hour, the School asserts, “[a]s indicated in the [School’s] fee petition, the [School’s] Counsel is the lowest paid employee with the necessary skill to determine what information contained within the invoices is protected by attorney-client privilege.” Malden Transparency has alleged that it is “standard billing practice to exclude any privileged information . . .” The School asserts that this allegation is unfounded, it’s October 15th response states, “[t]he invoices contain descriptions regarding legal services provided by the firm to the [School]. These descriptions often contain information protected by attorney-client privilege, including the content of communications between counsel and the [School’s] employees. Furthermore, the invoices provided by the law firm may also contain student and personnel information which would permit the identification of those students or personnel, including in some instances, the names of individuals. The [Counsel] may redact this information protected

Ms. Lauren Celi SPR21/2801 Page 4 November 5, 2021 by the attorney-client privilege…at the same time that it reviews the records for information protected by the attorney-client privilege. In doing so, the [School] will reduce the time spent redacting any responsive documents.” Based on the School’s October 15th 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. Furthermore, as noted earlier I this determination, 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