Malden Transparency v. Fairhaven, Town of - Public Schools (SPR 20212871)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 5, 2021 SPR21/2871 Melissa Bouchard Records Access Officer Fairhaven Public Schools 128 Washington Street Fairhaven, MA 02719 Dear Ms. Bouchard: I have received your petition on behalf of the Fairhaven Public Schools (School) seeking permission to charge for time spent segregating or redacting responsive records, as well as a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(c), (d)(iv). As required by law, the School furnished a copy of this petition to the requestor. Id. On September 26, 2021, Malden Transparency requested “[a]ll billing statements and/or invoices from Murphy, Hesse, Toomey & Lehane, LLP, . . .[,]” and “[a]ll documents evidencing payments made to Murphy, Hesse, Toomey & Lehane, LLP. . . . For the time period January 1, 2019 through the date you respond with the responsive documents[.]” 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). 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. 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

Melissa Bouchard SPR21/2871 Page 2 November 5, 2021 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 – 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 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). Current Petition In its October 29, 2021 petition, the School explains “. . . 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 are highly likely to contain information specifically or by necessary implication exempted from disclosure by statute, because they would contain student record/education record information under 603 CMR 23.00 and the Family Education Rights and Privacy Act (‘FERPA’). • Exemption (c) - Legal bills are likely to contain information related to an employee’s

Melissa Bouchard SPR21/2871 Page 3 November 5, 2021 personnel/medical issue that required legal consultation. This includes, but 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 attorney-client privileged communications that must be redacted to preserve the privilege.” In addition, the School “. . . seeks to assess fees for time spent segregating and redacting records that fall within statutory exemptions beyond Exemption (a) of G.L. c. 4, §7(26) given the likelihood that the aforementioned categories of information need to be redacted. Moreover, the [School] seeks to charge a rate in excess of $25 per hour. Specifically, the [School] seeks approval to charge an hourly rate of $75 per hour. The redaction of the requested documents requires both knowledge in law and knowledge of the facts at issue. Accordingly, this redaction cannot be performed by a [School] employee; rather, it must be completed by legal counsel for the [School]. In particular, the records requested must be reviewed and redacted by an individual who is knowledgeable, well-versed and trained in the following subject areas: • Case law responsive to Exemption (c), and specifically, how the Supervisor of Public Records and courts have interpreted the type of information that may be redacted and applying those decisions to the requested records; • Attorney-client privilege, and specifically, the application of Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007) and other cases as to what constitutes information falling under the attorney-client privilege that must be redacted.” The School notes that “[t]he hourly rate associated with the lowest paid employee who has the necessary skill required to perform this task is $235 per hour. However, the [School] is willing to lower the hourly rate to $75 per hour.” The School further contends that “[t]he purpose of assessing fees is to simply offset the costs that will be charged to the [School] in responding to this request and ensure that the [School] can properly redact information as required by G.L. c. 4, §7(26). Moreover, the [School] represents that it is more than willing, consistent with its obligation under G.L. c. 66, § 10(b)(vii), to communicate with the requestor to suggest reasonable modifications of the scope of the request that would enable more efficient and affordable record access.” Conclusion I find the School has met its burden to explain how the request could not prudently be completed without redaction or segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Further, I find the School has established how it may assess a fee for the time spent to segregate and redact these requested records at $75.00 per hour. Please note, Malden Transparency has the right to seek judicial review of this decision by

Melissa Bouchard SPR21/2871 Page 4 November 5, 2021 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