Malden Transparency v. Lincoln, Town of -- Public Schools (SPR 20212817)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 5, 2021 SPR21/2817 Rebecca E. McFall, Ed.D. Superintendent Lincoln Public Schools Ballfield Road Lincoln, MA 01773 Dear Dr. McFall: I have received the petition of OpenMalden.com appealing the response of the Lincoln 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, OpenMalden.com 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 Appeals This request was the subject of a previous appeal. See SPR21/2598 Supervisor of Records Determination (October 20, 2021). In my October 20th determination, I ordered the School to clarify how the amount of time stated in its fee estimate was necessary to gather the responsive invoices and purchase orders. Subsequently, the School provided a written response on October 25, 2021. Again objecting to the fees, OpenMalden.com appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Rebecca E. McFall, Ed.D. SPR21/2817 Page 2 November 5, 2021 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 Fee Estimate and Subsequent Responses In its October 5, 2021 fee estimate, the School states the following: [C]ertain sections of the documents available will be redacted. The sections that will be redacted are those sections which relate to particular students that could be easily identified without said reactions. It is the [School’s] contention that said sections are exempted from release pursuant to M.G.L. c. 4, § 7(26)(c) . . . as well as M.G.L. c. 4, § 7(26)(a) . . . as the information is protected by the Family Educational Rights and Privacy Act (FERPA) and the Massachusetts Students Records Law and Regulations.

Rebecca E. McFall, Ed.D. SPR21/2817 Page 3 November 5, 2021 [The School] will be assessing a fee for the staff time required to fulfill the request. . . This estimate has been created by assessing the time it might take the lowest-paid clerical or professional individual to complete this work. In accordance with the Public Records Law, the hourly fee assessed cannot exceed $25.00 per hour. For communities with a population of more than 20,000, the hourly fee for the first two hours is waived. Lincoln Massachusetts has a population of less than 20,000. In an email to OpenMalden.com and this office on October 8, 2021, the School further explained that it “did not request compensation for redaction. [The School] only requested time, as allowed under the law, that it will take [School] employees to carry out the work of gathering the documents for electronic submission.” In its October 25, 2021 response, the School provides the following additional information: The gathering of documents will require three persons, two administrative assistants who hold the invoices in their separate departments for general legal services and special education services respectively. In addition, the Coordinator for Business Operations will be required to gather up purchase orders relevant to the records requested. The School District does not hold copies of checks or forms of payment. Additionally, the School provides the revised table below: Request Requested Records Time Employee Estimated Information Available Title Cost 1 All billing statements Invoices from 3 hours Administrative $75.00 and/or invoices from [a named law Assistants to [a named law firm]. firm]. the Superintendent and the Administrator for Student Services 2 All documents Purchase 3 hours Coordinator of $75.00 evidencing payments Orders Business made to [a named generated for Operations law firm]. payment to [a named law firm]. Total $150.00 In this case, the School has made clear that the municipality has a population of less than 20,000, and that the School is charging a fee of $25.00, which is less than the salary of the lowest

Rebecca E. McFall, Ed.D. SPR21/2817 Page 4 November 5, 2021 paid employee with the necessary skills, and the School has explained the tasks required in searching for the responsive records. Conclusion As set forth above, I find the School has met its burden in responding to OpenMalden.com’s request at this time. 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: OpenMalden.com