Naomi Martin v. Revere, City of - Public Schools (SPR 20220364)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 22, 2022 SPR21/0364 Richard Gallucci, Ph.D. Records Access Officer Revere Public Schools 101 School Street Revere, MA 02151 Dear Dr. Galluci: On February 14, 2022, this office received your petition on behalf of City of Revere Public Schools (School) requesting permission to charge for time spent segregating or redacting responsive records as well as to charge in excess of the statutory fees. G. L. c. 66, § 10 (d)(iv). As required by law, it is my understanding that the School furnished a copy of this petition to the requestor, Naomi Martin of the Boston Globe. Id. On February 4, 2022, Ms. Martin requested: • any and all contracts or invoices with outside vendors or private parties for legal, investigative or human resources work from Jan. 1, 2007 through Jan. 30, 2022 pertaining to inquiries related to allegations of abuse, bullying, harassment, discrimination or other misbehavior or misconduct by students, staff members, and/or coaches • any and all related records to such services provided from Jan. 1, 2007 through Jan. 30, 2022. This includes, but is not limited to: -any prepared reports, investigations or reviews -any preparatory materials or files, including internal and external communications or electronic correspondence in the possession of the district, school board or school officials service orders, memoranda of agreement/understanding, or other records related to retainment, cost, and scope of work. -any emails, statements, news releases, or other communications to families, educators, the media, or the public about the outside vendors’ ‘work’ 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 SPR22/0364 Page 2 February 22, 2022 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 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).

Richard Gallucci, Ph.D SPR22/0364 Page 3 February 22, 2022 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). -Se-e 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 February 14th petition, the School requests “…that [the Supervisor of Public Records] approve the petition of the [School] to charge for time spent segregating and redacting a public records request received on February 4, 2022.” 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. Specifically, the [School] seeks approval to charge an hourly rate of $240 per hour.” The School posits that “...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 requested legal invoices, reports, files and correspondence contain information specifically or by necessary implication exempted from disclosure by statute, in that the documents implicate student record/education record information under 603 CMR 23.00 and the Family Educational Rights and Privacy Act (‘FERPA’). Exemption (c): The requested legal invoices, reports, files and correspondence contain information related to employee personnel and medical issues. This includes, but is not limited to, employee disciplinary information, employee medical information, and individual accommodations. The requested legal invoices, reports, files and correspondence contain information related to student medical issues. The requested legal invoices, reports, files and correspondence contain references to unwarranted invasions of personal privacy. Disclosure of information related to allegations and investigations into abuse, bullying, harassment, discrimination or misconduct has an inherently invasive effect on victims of any such conduct.

Richard Gallucci, Ph.D SPR22/0364 Page 4 February 22, 2022 Attorney-Client Privileged Communications: The requested communications contain information regarding advice provided by attorneys to the [School]. These communications will need to be redacted to preserve attorney-client privilege.” With respect to fees, the School contends that “[t]he redaction of legal bills requires both knowledge in law and knowledge of the facts surrounding the work performed by the [School’s] attorneys. Accordingly, this redaction cannot be performed by a [School employee]; rather, it must be completed by an associate attorney for the [School].” The School notes, “[t]he hourly rate associated with the lowest paid employee who has the necessary skill required to perform this task is $240 per hour. The [School] estimates that because of the voluminous amount of information exempt under G.L. c. 4, §7(26) and the attorney-client privilege contained within the requested information, it will take an average of 1 minute to review and redact each page. This number is based on the need to carefully read each page, make the necessary determinations regarding whether the record contains exempt information, redact any confidential information contained in the records if found, and the possibility that other individuals may need to be consulted throughout this process.” The School notes 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. However, to the extent that the requestor is not willing to further modify the scope of the request or only agrees to modify the request leniently, the [School] seeks to assess fees for the records requested in this matter.” Conclusion Given the public interest served by limiting the cost of public access to the requested records, I am unable to grant permission to charge for time spent segregating or redacting responsive records or to charge in excess of $25 an hour. Please note, this does not preclude the School from charging for segregation and redaction that is required by law at $25.00 per hour. Further, this office encourages Ms. Martin and the School continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(an -- agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Any fee estimate by the School must be in compliance with this determination, the Public Records Law, and its Access Regulations.

Richard Gallucci, Ph.D SPR22/0364 Page 5 February 22, 2022 When preparing a fee estimate for the provision of the requested records the School is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The School must provide a response to Ms. Martin within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Martin may appeal the School’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Naomi Martin