Naomi Martin v. Brockton, City of - Public Schools (SPR 20220401)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 23, 2022 SPR22/0401 Bou Lim Records Access Officer Brockton Public Schools Crosby Administration Building 43 Crescent Street Brockton, MA 02301 Dear Bou Lim: I have received your petition on behalf of the Brockton Public Schools (School) seeking an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records, and a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the School furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On February 3, 2022, Naomi Martin of the Boston Globe requested several categories of records “pertaining to inquiries related to allegations of abuse, bullying, harassment, discrimination or other misbehavior or misconduct by students, staff members, and/or coaches.” 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: (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; 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

Bou Lim SPR22/0401 Page 2 February 23, 2022 (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). Request for Additional Time to Produce Responsive Records In its February 17, 2022 petition, the School states that “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 District’s outside legal counsel, these records likely contain the content of discussions between the District 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. . . . 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, 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. . . . Specifically, they are protected by the Federal Education Rights Privacy Act, Massachusetts General Law, Chapter 71, Section 34A to 34H, and 603 CMR 23.00 et. seq. At the very least, the records will need to be reviewed to determine if they contain any student information, and then any necessary redactions will need to be made.

Bou Lim SPR22/0401 Page 3 February 23, 2022 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. . . . Given 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 District submits that it is not reasonable to require it to produce the responsive records within 10 business days. Therefore, District hereby petitions for an extension of time to respond to the request, given that the scope of redaction required to prevent unlawful disclosure is significant. The District will be unable to complete its review, redaction, and production of records during normal business hours of operation without an extension. 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 of payment for the work, to respond to the request.” I find that in light of the need to segregate and examine the records, the scope of redaction required to prevent unlawful disclosure, the capacity of the School to produce the request without the extension, and the efforts undertaken by the School in fulfilling the current request request, the School has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The School is granted an extension of 30 business days. Please note the time may begin to run once the School receives payment. G. L. c. 66, § 10(c). Petition to Assess Fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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

Bou Lim SPR22/0401 Page 4 February 23, 2022 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (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). Fee in Excess of $25.00 per Hour In its petition, the School states the following concerning its request to charge a fee in excess of $25.00 per hour: In this case, the lowest paid employee who has the necessary skill required to search for the records requested is a salaried employee whose effective hourly rate exceeds $25 per hour. Notwithstanding that rate, a rate of $25 per hour will be used for search time. . . . The 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

Bou Lim SPR22/0401 Page 5 February 23, 2022 at additional cost. Counsel’s hourly rate is $250. Notwithstanding that rate, the District will request that the Supervisor allow it to charge $75 per hour to complete the review. Furthermore, the District 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 District does not need to seek authorization to charge for such redactions. 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 per 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. Conclusion Accordingly, I find the School has established good cause for a time extension of 30 business days as described above. However, 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. Further, this office encourages Ms. Martin and the School to continue communicating in order 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. 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). Please note, Ms. Martin 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(c), (d)(iv)(4), § 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Naomi Martin