Victoria Silvia v. Revere, City of - Public Schools (SPR 20212997)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 17, 2021 SPR21/2997 Richard Gallucci, Ph.D. Records Access Officer Revere Public Schools 101 School Street Revere MA, 02151 Dear Dr. Gallucci: On November 10, 2021, this office received your petition on behalf of the Revere 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 its petition to the requestor, Victoria Silvia. G. L. c. 66, § 10(c). On November 3, 2021, Ms. Silvia requested “…the e-mails of [an identified individual] for the week of 10/25-11/1.” Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not 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 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

Richard Gallucci, Ph.D. SPR21/2997 Page 2 November 17, 2021 such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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) 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) Current Petition In its November 10th petition, the School requests permission “…to charge for time spent segregating and redacting a public records request received on November 3, 2021.” The School explains “…that there are about one hundred and thirteen (113) e-mails responsive to the request. The [School] understands that pursuant to G.L. c. 66, § 10(d)(iii), it cannot assess a fee for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by your office. The [School] intends, in actual and good faith, to comply with the request. However, 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) – The records contain communications to and from students enrolled in the [School] and therefore implicate student record/education record information under 603 CMR 23.00 and the Family Educational Rights and Privacy Act (‘FERPA’) by containing student information that must be redacted. Exemption (c) – The records contain communications referencing medical information related to certain individuals.

Richard Gallucci, Ph.D. SPR21/2997 Page 3 November 17, 2021 Exemption (c) – The communications between and among School Committee members reference information which, if disclosed, constitutes an unwarranted invasion of personal privacy related to certain individuals. Attorney-Client Privileged Communications – The requested e-mails contain references to attorney-client privileged communications that must be redacted to preserve the privilege.” The School further 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…The hourly rate associated with the lowest paid employee who has the necessary skill required to perform this task is $240 per hour. However, it is willing to lower the hourly rate to $75 per hour.” The School contends that “[t]he 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: FERPA and 603 CMR 23.00 and specifically, what constitutes personally identifiable information (‘PII’) subject to redaction; 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 the what constitutes information falling under the attorney-client privilege that must be redacted.” 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, Ms. Silvia 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).

Richard Gallucci, Ph.D. SPR21/2997 Page 4 November 17, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Victoria Silvia