Talia Berkowitz v. Northbridge Public Schools (SPR 20220007)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 6, 2022 SPR22/0007 Kayleigh Poudrier Records Access Officer Northbridge Public Schools 87 Linwood Avenue Whitinsville, MA 01588 Dear Ms. Poudrier: I have received the petition on behalf of the Northbridge Public Schools (School) requesting permission to charge for time spent segregating or redacting responsive records and to charge fees in excess of $25 per hour. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). The School provided the requestor with a fee estimate on January 3, 2021. On December 16, Talia Berkowitz requested, “Line item spent on legal fees related to special education specifically time spent on any individual cases in the [School] including at TEAM meetings, mediation, legal actions and in settlements.” 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

Kayleigh Poudrier SPR22/0007 Page 2 January 6, 2022 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 estimate – 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) 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 January 3, 2022 petition, the School states that: Legal bills contain information specifically or by necessary implication exempted from disclosure by statute, because they could contain information related to executive session minutes which are exempt from disclosure pursuant to G.L. c. 30A, § 22(f)…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”)… 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,

Kayleigh Poudrier SPR22/0007 Page 3 January 6, 2022 subsequent quarantines, and individual accommodations… information related to a student’s medical issues that required legal consultation…[and] information regarding advice provided by attorneys to the [School]. These communications will need to be redacted to preserve attorney-client privilege. Based on the School’s petition, I find the School 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 School 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 School also states the following concerning its request to charge a fee in excess of $25.00 per hour: The redaction of legal bills for special education matters requires both knowledge in special education law and knowledge of the facts surrounding the work performed by the [School]. Accordingly, this redaction must be completed by a [School] employee in the Pupil Services department. The hourly rate associated with the lowest paid employee who has the necessary skill required to perform this task is $56.61/hour. I find the School 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 School may assess a fee limited to $56.61 per hour. Conclusion Accordingly, to the extent the responsive records contain the exempt information described above, the School may assess a fee for segregation and redaction. Additionally, as described above, the School may assess a fee limited to $56.61 per hour. Please note, Commonwealth 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).

Kayleigh Poudrier SPR22/0007 Page 4 January 6, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Talia Berkowitz