Malden Transparency v. Swampscott, Town of - Public Schools (SPR 20212806)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 8, 2021 SPR21/2806 Pamela R. H. Angelakis, M.A., M.Ed. Superintendent Town of Swampscott Public Schools 207 Forest Avenue Swampscott, MA 01907 Dear Dr. Angelakis: I have received the petition of Malden Transparency appealing the response of the Town of Swampscott Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On Sunday, 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]. Previous appeal The School provided Malden Transparency with an October 7, 2021 response, including a fee estimate for $750.00. Objecting to the fee estimate, including the hourly rate and a copying charge of 5 cents per page, Malden Transparency petitioned the Supervisor of Records (Supervisor), and the prior appeal, SPR21/2636 was opened. See SPR21/2636 Determination of the Supervisor of Records (Supervisor) (October 22, 2021). On October 25, 2021, the School provided a supplemental response to my October 22nd determination. As a result of the School’s response, Malden Transparency appealed again, and the current appeal, SPR21/2806, was opened. 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 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

Dr. Pamela R. H. Angelakis SPR21/2806 Page 2 November 8, 2021 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 7, 2021 Fee Estimate The School’s October 7th fee estimate states, “[Malden Transparency] will be charged 5 cents per page for photocopies of public records. The [School] estimates your request requires 216 photocopies to be made at a total cost of $10.80.” The School is advised pursuant to 950 C.M.R. 32.07(1)(c), “[t]he records access officer shall presume that a requestor prefers copies provided in machine-readable electronic form, when electronic form is available . . .” Also, “[a] records access officer shall presume a requestor prefers electronic copies and must provide electronic records in native form when possible.” 950 C.M.R. 32.07(1)(d). Malden Transparency indicated in its request its preference for receiving the records in an electronic format. In its petition for an appeal, Malden Transparency states, “[i]f any responsive documents exist in a non-electronic format, please include an estimate of the actual costs to scan the documents and provide them electronically.” It is unclear whether the documents exist in electronic format, or whether the School could scan and provide such records to Malden Transparency via email. The School must clarify this issue. In addition, the School explains, “…we estimate that it will take approximately 30 hours to search, redact, and copy these documents. You will be charged a prorated fee of $25 per hour for the search and segregation time associated with this request.” The School further states regarding the maximum hourly rate allowed by the Public Records Law of $25 per hour, “…the lowest-paid employee capable of performing this task is higher than $25 per hour. The [School] estimates your request requires 30 hours of search, segregation time, redacting and photocopying at a total cost of $750.00.” In my October 22, 2021 determination of SPR21/2636, I found the School must further clarify its October 7th fee estimate. To the best of my knowledge, the School did not file a fee

Dr. Pamela R. H. Angelakis SPR21/2806 Page 3 November 8, 2021 petition for any segregation and/or redaction that are not required by law. The School was ordered to clarify whether the segregation and/or redaction is required by law and clarify how much time is required for the tasks of searching for the responsive records, segregating and redacting the responsive records. The School’s October 25, 2021 response In its October 25th response, the School indicates, “…the [School] will waive any copying costs for the records being provided and will provide the records electronically.” The School further explains: “[a]fter careful review of the records, it will take 25 hours for [the School] to search for the records and 5 hours to review the legal invoices to make redactions for information that is required by law to be redacted and/or protected by the attorney-client privilege. Specifically, the invoices contain attorney-client privileged information regarding students who receive special education services from [the School], which information is confidential under the Family Educational Rights and Privacy Act (FERPA) and the Individuals with Disabilities Education Act (IDEA), as well as 603 C.M.R. 23.00 et seq. and must be redacted pursuant to exemption (a) of the Public Records Law.” The School’s October 25th response indicates that it carefully reviewed the records, then assesses 25 hours to actually search for the records. The School must clarify the tasks it will undertake to perform the search and must detail how much time each of these tasks will take. Furthermore, the School’s October 25th response indicates that it will segregate and redact attorney-client privileged information and information regarding students under FERPA, IDEA, as well as the state regulations concerning student information. While these redactions are required by law, it is unclear why the School finds it is necessary to assess 5 hours of time to do so. The School has not explained how many records it has in its possession that must be redacted, and how long it estimates it will need per page to segregate and redact this information from the records. The School also noted it “…will certainly work with the requestor collaboratively to either narrow the time frame or provide further specifics which will limit the search and redaction time to these legal invoices and provide an updated estimate accordingly.” Order Accordingly, the School must provide Malden Transparency with a response to the request, 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.

Dr. Pamela R. H. Angelakis SPR21/2806 Page 4 November 8, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden Transparency