Malden Transparency v. North Middlesex Regional School District (SPR 20212836)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 2, 2021 SPR21/2836 Robin Eibye Records Access Officer North Middlesex Regional School District 66 Brookline Street Townsend, MA 01469 Dear Ms. Eibye: I have received your petition on behalf of the North Middlesex Regional School District (District) a waiver of statutory limits on fees that may be assessed in responding to the request and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the District furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On September 27, 2021, Malden Transparency requested the following: For the time period January 1, 2019 through the date [the District] 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 This request was the subject of a previous appeal. See SPR21/2560 Determination of the Supervisor of Records (October 19, 2021). The District was ordered to provided a response to Malden Transparency. As a result, the District petitioned this office and SPR21/2836 was opened as a result. Petition to Assess Fees 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 (Supervisor) 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). 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

Robin Eibye, RAO SPR21/2836 Page 2 November 2, 2021 In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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).

Robin Eibye, RAO SPR21/2836 Page 3 November 2, 2021 Current Petition In its October 27, 2021 petition, the District states that the “the requested records must be redacted where many of the responsive documents will meet the following inclusive, not exhaustive, exemptions set forth in G.L. c. 4, § 7(26): Exemption (a) – Legal bills and communications between School Committee members are highly likely to contain information specifically or by necessary implication exempted from disclosure by statute, because they would contain information related to executive session minutes which are exempt from disclosure pursuant to G.L. c. 30A, § 22(f). Legal bills are also likely to contain information specifically or by necessary implication exempted from disclosure by statute, in that would implicate student record/education record information under 603 CMR 23.00 and the Family Educational Rights and Privacy Act (“FERPA”) . . . . Exemption (c) – Legal bills are likely to contain information related to an employee’s personnel/medical issue that required legal consultation. This includes, but is not limited to, employee disciplinary information, employee exposure to COVID-19, subsequent quarantines, and individual accommodations. Legal bills are also likely to contain information related to a student’s medical issues that required legal consultation. . . . Attorney-Client Privileged Communications – The requested e-mails may contain references to attorneyclient privileged communications that must be redacted to preserve the privilege. Based on the District’s petition, I find the Distirct has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records -- contain the exempt information as described above, the District may assess a fee for the segregation and redaction of such exempt material. Fee in Excess of $25.00 per hour In its petition, the District also states the following concerning its request to charge a fee in excess of $25.00 per hour: The hourly rate associated with the lowest paid employee who has the necessary skill required to perform this task is $235 per hour. However, is willing to lower the hourly rate to $75 per hour. The District estimates that because of the amount of information exempt under G.L. c. 4, §7(26) will take an average of one to one and a half (1 – 1.5) minutes to review and redact each page. This number is based on the need to carefull read each page, make the necessary determinations regarding whether the record contains exempt information, redact any confidential information contained in the records if found, and the possibility that other individuals may need to be consulted throughout this process.

Robin Eibye, RAO SPR21/2836 Page 4 November 2, 2021 I find the District has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). I find the District may assess a fee limited to $75.00 per hour for attorney review. Conclusion Accordingly, I find to the extent the responsive records contain the exempt information described above, the District may assess a fee for segregation and redaction. Further, as described above, the District may assess a fee limited to $75.00 per hour for attorney review. Please note, Malden Transparency has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden Transparency Superintendent Brad Morgan