Framingham Reporter v. Wellesley, Town of - Public Schools (SPR 20213155)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 7, 2021 SPR21/3155 Alexandra B. Rubin, Esq. Miyares and Harrington LLP 40 Grove Street, Suite 190 Wellesley, MA 02482 Dear Attorney Rubin, On December 2, 2021, I received your petition on behalf of the Wellesley 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, Framingham Reporter. Id. On November 17, 2021, Framingham Reporter requested various categories of records concerning an identified individual. Petitions 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). 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 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

Alexandra B. Rubin, Esq. SPR21/3155 Page 2 December 7, 2021 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). Current Petition In its December 2nd pettion, the School states, “I am writing to petition for a waiver of statutory limits on fees for responding to a public records request, dated November 17, 2021. I request authorization to charge a rate higher than $25 per hour, as further described below, for actual time spent by the School Department to segregate and redact the requested records.” The School notes it “…has already produced numerous records responsive to this re- quest—nearly 400 pages of documentation. However, in addition to those records, the School Department estimates that there are an additional 347 emails potentially responsive to part 2 and part 3 of the request. It is likely that the School Department may withhold many of these emails, in full or in part, because they are subject to one or more of the exemptions to the Public Records Law including, Exception (c), which permits the withholding of sensitive medical/privacy information pertaining to minor children. Many of [the identified indvudal’s] communications dealt with [their] children. Thus, these communications will need to be reviewed and potentially

Alexandra B. Rubin, Esq. SPR21/3155 Page 3 December 7, 2021 withheld.” The School posits that it “…only seeks permission to charge $43.86 per hour, which is the hourly rate of Laura Ball, the Administrative Assistant to the Assistant Superintendent of Finance and Operations. The Department estimates that it will take approximately 3 minutes, on average, to review, and as necessary, redact each of the 347 records (total of 17.4 hours).” Further, “…it is not uncommon for School Department staff, including Ms. Mahr, to contact Town Counsel to seek an opinion about a particular record. This is especially true where interpretations of the law are not evident or implicate complicated federal or state statutes. The School Department will incur an expense associated with Town Counsel’s review. An associate in my office charges $185 per hour.” The School contends that “[t]his petition qualifies for a waiver under these criteria. As described above, the fee represents an actual and good faith representation to comply with the request. The fee is also necessary because the School Department cannot properly respond to the request without segregating and redacting the records. It is likely that the records include information containing sensitive medical/privacy information…Additionally, the increase in the fee from $25 per hour to $43.86 per hour is not only modest but is far less than the School Department will actually incur in responding to the request. The fee is also not designed to limit, deter, or prevent access to the records, as demonstrated by the School Department’s willingness to charge only the hourly rate of Ms. Ball for the review of the emails.” 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 $43.86 per hour. Please note, the requestor 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: Cynthia D. Mahr Framingham Reporter