Commonwealth Transparency v. Berkshire Hills Regional School District (SPR 20213282)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 23, 2021 SPR21/3282 Doreen Twiss Berkshire Hills Regional School District P.O. Box 617 50 Main Street Stockbridge, MA 01262 Dear Ms. Twiss: I have received the petition of the Berkshire Hills Regional School District (District) requesting an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records, and relief from the obligation to respond to the request. 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 December 6, 2021, Commonwealth Transparency requested the following: For the time period December 1, 2020 through the December 3, 2021, please provide the following; 1. Any and all public records requests seeking public records of [the] school(s), and/or district(s). 2. All metadata from the requests in #1 above including all contact information of the requestor, including but not limited to emails and text messages. 3. All electronic communications regarding #1 above including but not limited to emails and text messages. 4. All responses, appeals, fee requests and responsive records resulting from the requests in #1 above. Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: 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

Doreen Twiss SPR21/3282 Page 2 December 23, 2021 (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Extension of Time to Produce Responsive Records In its December 17, 2021 petition, the District states the following: [The requestor] has made multiple voluminous requests within a short time period. This instant request will take a significant amount of time to respond to given the volume of records requested. As a result, it is not possible to respond within 10 business days. Therefore, District hereby petitions for an extension of time to respond given that the scope of redaction required to prevent unlawful disclosure is significant. The District will be unable to produce the records during normal business hours of operation without an extension in light of the size of the request and the repeated requests within a short time period. Pursuant to M.G.L. c. 66, section 10(c), the District requests an additional 30 business days beyond the time specified under the statute (25 business days) – for a total of 55 business days from the date of receipt payment for the work, to respond to the portion of the request that seeks legal invoices. I find in light of the need to collect and segregate the request, as well as the capacity of the District to produce the request without an extension, the District has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The District is granted an extension of 30 business days. Please note the time may begin to run once the District receives payment. G. L. c. 66, § 10(c).

Doreen Twiss SPR21/3282 Page 3 December 23, 2021 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. 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).

Doreen Twiss SPR21/3282 Page 4 December 23, 2021 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 petition, the District states that “the records will need to be redacted for several reasons. . . First, the request seeks all electronic communication about public records requests. Those records likely contain the content of discussions between the District and its attorneys, for the purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney-client privilege. . . Accordingly, the records will need to be reviewed to determine if they contain information protected by the attorney-client privilege and then any necessary redactions will need to be made. . . . Second, in many cases the public records requests are from parents seeking records of their children and additional records. In those cases, a response may provide both information covered under student records regulations and public records information. As a result, the records are likely to contain personally identifying information of public school students. . . . Finally, these emails and responses require redactions in accordance with the exemption set forth at G. L. c. 4, § 7(26)(c). . . In accordance with the exemption, the District needs to redact personal email addresses and cell phone numbers from these requests.” Based on the District’s petition, 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 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. Request for Relief In its petition, the District “requests that [the Supervisor] determine, pursuant to G. L. c. 66, § 10(c), that this request is part of a series of requests that is intended to harass the District and thereby relieve the District of its obligation to provide copies of the records sought.” The District provides the following information: [The requestor] appears to be filing this request to harass and intimidate specific school districts. The request is so broad and seeking such a comprehensive set of records that there can be no valid public purpose for such a request. Upon

Doreen Twiss SPR21/3282 Page 5 December 23, 2021 information and belief, [the requestor] has served this voluminous records request on school districts that provided a fee estimate to its last request. This is further evidence that [the requestor’s] request is intended to harass and intimidate these districts and is not intended for the broad dissemination of information to the public about government activity. Additionally, [the requestor] has made this broad public records request exclusively to Murphy, Hesse, Toomey & Lehane (“MHTL”) clients. MHTL represents one particular school district that is currently engaged in litigation, in multiple forums, with the individual behind Open Commonwealth. Given the targeted nature of the request and the parties involved, the request does not appear to have been made in good faith, or for any genuine public purpose, or in the public interest. Rather, it is clear on its face that the purpose of this request, as part of a series of requests, is to intimidate and harass MHTL and its clients. Based on the information provided in the District’s petition, I find that the District has not demonstrated the requests are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c). Conclusion Accordingly, I find the District has established good cause for a time extension of 30 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the District may assess a fee for segregation and redaction. 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: Commonwealth Transparency