Commonwealth Transparency v. Acushnet, Town of - Public Schools (SPR 20212809)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 5, 2021 SPR21/2809 Kelly Benevides Assistant to the Superintendent Acushnet Public Schools 130 Main Street Acushnet, MA 02743 Dear Kelly Benevides: I have received the petition of Commonwealth Transparency appealing the response of the Acushnet Public Schools (School) 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. Previous petition This request was the subject of a previous fee and time petition. See SPR21/2802 Supervisor of Records Determination (November 1, 2021). Please refer to the determination in SPR21/2802 for an analysis of this issue. On October 25, 2021, the School responded to Commonwealth Transparency’s request, including a fee estimate. Unsatisfied with the School’s response, Commonwealth Transparency petitioned this office and this appeal, SPR21/2809, was opened as a result. 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

Kelly Benevides SPR21/2809 Page 2 November 5, 2021 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). 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 Response In its October 25, 2021 response, the School stated that: [T]he records sought in the request need be reviewed, and potentially redacted, for several reasons…First, [the request] seek[s] all electronic communication about public records requests. Those records likely contain the content of discussions between the [School] 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…Second, in many cases the public records requests are from parents seeking records of their children and additional records. In those cases, a response may provide both information covered under student records regulations and public records information. As a result, the records are likely to contain personally identifying information of public school students…Finally, these emails and responses require redactions in accordance with the exemption set forth at G.L. c. 4, § 7(26)(c)… In accordance with the exemption, the [School] needs to redact personal email addresses and cell phone numbers from these requests. The [School] estimates that it will take District Counsel approximately 1 minute per page to complete its review, segregation, and potential redaction of the

Kelly Benevides SPR21/2809 Page 3 November 5, 2021 records [Commonwealth Transparency] seeks. As a result, the [School] estimates a total of 11 hours for segregation and redaction. 3 hours [for search] plus 11 hours for segregation and redaction is a total of 14 hours. 14 hours multiplied by $25 per hour yields a fee estimate of $350.00. Current Appeal In its October 25th appeal, Commonwealth Transparency states the following: The RAO must quantify any cost estimate with specific records, with specific costs associated with only legally allowed charges…The RAO has estimated 5 hours for an improper use of the term “search”, this is an incredulous number and is wholly unsupported by both the request itself and the response…The RAO first attempts to invoke attorney-client privilege…This claim is for attorney-client communications, not attorney work-product…Only communications between the public entity and its attorney made with a view towards obtaining or providing legal advice are protected…The RAO then claims student privacy as “…in many cases the public records requests are from parents seeking records of their children and additional records.”…There is no applicability of student record privacy in this request or in responsive documents…The RAO then attempts to invoke G.L. c. 4, § 7(26)(c). Exemption (c), the privacy exemption…There is no applicability of the privacy exemption in this request or in any responsive documents…The RAO has proposed [11] hours to segregate and redact. This time estimate is at least quadruple the amount of time required to perform any statutorily required segregation and redaction. Affirmatively, [Commonwealth Transparency]…petitions the [Supervisor of Records] to reduce the allowed time to segregate and redact to a maximum of 15 seconds per page. Wherefore OpenCommonwealth.org respectfully requests that the [Supervisor of Records] find and Order RAO of the Acushnet Public Schools to provide all responsive documents identified as responsive and…to re-search and produce all records responsive and that they be released without charge and without delay as none of the identified documents require further search and a charge cannot be levied against the requestor because no statutory exemption to the general rule of public disclosure is valid in the RAO’s response. As set forth above, I find the School has met its burden in responding to Commonwealth Transparency’s request at this time. Please be advised the School received approval to charge for segregation and redaction, to the extent the responsive records contain the exempt information. See SPR21/2802 Determination of the Supervisor of Records (November 1, 2021). -- Conclusion Accordingly, I will consider this administrative appeal closed.

Kelly Benevides SPR21/2809 Page 4 November 5, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Commonwealth Transparency