Commonwealth Transparency v. Danvers, Town of - Public Schools (SPR 20212803)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 8, 2021 SPR21/2803 Keith Taverna Danvers Public Schools 64 Cabot Road Danvers, MA 01923 Dear Keith Taverna: I have received the petition of Commonwealth Transparency appealing the response of the Danvers Public Schools (School/District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 13, 2021, Commonwealth Transparency 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. The School provided a response on October 25, 2021, which included a fee estimate. Objecting to the fees, the requestor petitioned this office and this appeal, SPR21/2803, was opened as result. 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). 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

Keith Taverna SPR21/2803 Page 2 November 8, 2021 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). The School’s October 25th fee estimate In its October 25, 2021 response, the School states that: The law requires that the District make significant redactions to the responsive records prior to production in connection with this request. Based on its good faith initial search, the District anticipates that significant redaction will be required by law for several reasons, including: (1) redaction of privileged attorney-client communications, inclusive of communications between District administrators and District counsel regarding counsel advising the District on legal matters pertaining to public records requests, responses and appeals, as well as related student and/or personnel matters, regarding which privilege has not been waived; (2) redaction of confidential student information, which is exempt from disclosure under M.G.L. c. 4, Section 7(26)(a), the statutory exemption, relative to personally identifying student information that the District is legally obligated to safeguard under both state and federal law and regulations (see 603 CMR 23.00; 20 U.S.C. § 1232g; 34 C.F.R. 99); (3) redaction of any confidential personnel information, under M.G.L. c. 4, Section 7(26)(c). . . . redaction of any other confidential information, the disclosure of which would violate and individual’s privacy under applicable legal standards relating to the M.G.L. c. 4, Section 7(26)(c). . . (5) redaction of any other confidential and/or privileged information, and/or redaction of any other information exempt from disclosure under Massachusetts public records law. See M.G.L. c. 4, Section 7(26).

Keith Taverna SPR21/2803 Page 3 November 8, 2021 The School [estimates] that “…on average, one (1) minute per each of the three hundred and seventy-one (371) likely responsive records will be required, resulting in a calculation of 371 divided by sixty (60) minutes per hour, requiring 6.183 hours, rounded down to 6.18 hours, with a reasonable estimate that three hundred and fifty (350) records will in fact be responsive, given the [School’s] carefully tailored search. The lowest paid person capable of performing this task earns greater than $25.00 per hour.” The School indicates that the first 2 hours will not be charged. The School further states that it has to “[c]arefully inspect an estimated three hundred and fifty (350) responsive records, including attachments, segregating and redacting any privileged, confidential or exempt information contained in any records, requiring analysis of the applicability M.G.L. c. 4, Section 7, clause 26 exemptions and other applicable law. Assuming that duplicate records, if any, will be more than offset by the existence of multipage records and attachments including some large attachments, and conservatively assuming an average of two (2) minutes of review and redaction time will be required per record, the District very conservatively estimates that reviewing and redacting the three hundred and fifty (350) responsive records will take at least seven hundred (700) minutes, divided by sixty (60) minutes per hour, equaling 11.667 hours, rounded down to eleven and a half (11.50) hours.” Based on the School’s response, it is unclear how the School may assess a fee for “carefully inspecting” the records under G. L. c. 66, § 10(d)(iii). Particularly, it is uncertain how this task constitutes time to search for, compile, segregate, redact, or reproduce records. Accordingly, I find the School must provide additional information regarding what this task entails and why it is necessary to produce responsive records. In its response, the School indicates that it requires “[s]ix (6) hours to export/compile and review these records, including attachments, to determine responsiveness.” Further in its estimate, the School indicates that an “. . . average of two (2) minutes of review and redaction time will be required per record, the District very conservatively estimates that reviewing and redacting the three hundred and fifty (350) responsive records will take at least seven hundred (700) minutes, divided by sixty (60) minutes per hour, equaling 11.667 hours, rounded down to eleven and a half (11.50) hours.” Based on the foregoing, it is unclear how the School may assess fee for a second review of the responsive records. The School must clarify this matter. Conclusion Accordingly, the School 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.

Keith Taverna SPR21/2803 Page 4 November 8, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Commonwealth Transparency