Elizabeth Koh v. Attleboro, City of - Public Schools (SPR 20220399)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 24, 2022 SPR21/0399 Superintendent David A. Sawyer Records Access Officer Attleboro Public Schools 100 Rathbun Willard Drive Attleboro, MA 02703-2799 Dear Superintendent Sawyer: On February 17, 2022, this office received your petition on behalf of the City of Attleboro Public Schools (School) requesting an extension of time to produce records, 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(c); 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, Elizabeth Koh of the Boston Globe. Id. On February 3, 2022, Ms. Koh 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

Supt. David A. Sawyer SPR22/0399 Page 2 February 24, 2022 Petition 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: (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). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. - 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 The School “…requests an additional 30 business days beyond the time specified under the statute.” The School states, “[g]iven the broad scope of the request, the volume of potentially responsive records, and the sensitive and confidential nature of the subject matter, which will result in the necessity for detailed review and redaction of the records, the [School] submits that it is not reasonable to require it to produce the responsive records within 10 business days.” The School posits that “…it will be unable to complete its review, redaction, and production of records during normal business hours of operation without an extension.” I find in light of the volume of records, the need to collect and segregate the request, as well as the capacity of the School to produce the request without an extension, the School has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The School is granted an extension of 30 business days.

Supt. David A. Sawyer SPR22/0399 Page 3 February 24, 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).

Supt. David A. Sawyer SPR22/0399 Page 4 February 24, 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). 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 February 17th petition, the School requests “…that the Supervisor authorize it to charge a fee to produce the records sought, as set forth below, because the responsive records implicate several exemptions under the Public Records Law, and will require detailed review and redaction prior to production.” The School notes: The records sought in the request need be reviewed, and potentially redacted, for several reasons: First, the request seeks all contracts or invoices with outside vendors retained for legal, investigative, or human resources work related to allegations of abuse, bullying, harassment, discrimination, or other misbehavior or misconduct by students, staff members and/or coaches, as well as ‘all related records to such services.’ Where the request would encompass records related to such services provided by the [School’s] outside legal counsel, these records likely contain the content of discussions between the [School] and its attorneys, for purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney-client privilege. Second, because the request seeks documents related to allegations of abuse, bullying, harassment, discrimination or other misbehavior or misconduct by students, the responsive records will include confidential student record information which is not subject to disclosure under the Public Records Law. In Champa v. Weston Public Schools, 473 Mass. 86 (2015), the Supreme Judicial Court held that a settlement agreement between a public school district and the parents of a child who required special education services at an out-of-district private institution, was not subject to disclosure under the Public Records Law based upon Exemption (a) (which protects from disclosure records that are ‘ ... specifically or by necessary implication exempted from disclosure by statute,’ MGL c. 4, § 7(26)(a)). Finally, because the request seeks documents related to allegations of abuse, bullying, harassment, discrimination or other misbehavior or misconduct by staff members and/or coaches, the responsive records will include personnel record information which is not subject to disclosure pursuant to Exemption (c) to the Public Records Law…Records responsive to the request will thus need to be reviewed and redacted to the extent they contain information concerning employees that relate to performance, complaints, evaluations, discipline, and any other exempt information.

Supt. David A. Sawyer SPR22/0399 Page 5 February 24, 2022 With respect to fees, the School contends that “[t]he Office of District Counsel is the lowest paid employee with the necessary skill to determine whether the attorney-client privilege requires certain portions of the responsive records to be redacted. While performing that review, Counsel can also determine whether other exemptions apply, rather than have a separate employee review the records at additional cost. Counsel’s hourly rate is $250. Notwithstanding that rate, the [School] will request that the Supervisor allow it to charge $75 per hour to complete the review. Furthermore, the [School] seeks that the Supervisor allow it to charge for the redactions required under Exemption (c) for the reasons outlined in this letter. Given that the other redactions are required by law, the [School] does not need to seek authorization to charge for such redactions.” The School estimates that “…it will take District Counsel approximately 1 minute per page to complete its review, segregation, and potential redaction of the records sought in the request. As a result, the [School] estimates a total of 14.48 hours. 15.24 hours for search, at the rate of $25 per hour, plus 14.48 hours for segregation and redaction, at the rate of $75 per hour, yields a total fee estimate of $1,467.” 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. 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. Koh within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Koh 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: Elizabeth Koh Judy Nelson