Naomi Martin v. Framingham, City of - Public Schools Department (SPR 20220416)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 25, 2022 SPR22/0416 Philip B. Benjamin, Esq. Benjamin & White, P.C. 600 Worcester Road, Suite 401 Framingham, MA 01702 Dear Attorney Benjamin: On February 18, 2022, this office received your petition on behalf of the City of Framingham 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, 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

Phillip B. Benjamin, Esq. SPR22/0416 Page 2 February 25, 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 In its February 18th petition, the School “…requests 30 business days following receipt of the Supervisor’s decision and payment of the estimated cost.” The School states, “[t]he additional time is needed to reasonably complete this review and redaction…The initial review of the records request determined that there are approximately 280 pages of documents and approximately 5,900 emails that are potentially responsive to the records request. Based on the extensive nature of the records request, significant time will be required to review and redact the records.” 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.

Phillip B. Benjamin, Esq. SPR22/0416 Page 3 February 25, 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).

Phillip B. Benjamin, Esq. SPR22/0416 Page 4 February 25, 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 18th petition, the School “…petitions: (1) to charge a fee in excess of the maximum hourly rate of $25.00 per hour; and (2) an extension of time of 30 business days following receipt of the Supervisor’s decision on this Petition and payment of cost estimate to comply with the public records request.” The School contends the requested records contain the following exempt information: • The records requested may contain communications within the attorney-client privilege, which are exempt from the definition of ‘public records’ and therefore are protected from public disclosure. See Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 445-446, 455-461, 870 N.E.2d 33 (2007). • The records requested may contain communications regarding litigation strategy and case preparation, which are exempt from the definition of ‘public records’ and therefore are protected from public disclosure. See DaRosa v. New Bedford, 471 Mass. 446, 458- 459, 30 N.E.3d 790, 801-802 (2015). •The records requested may contain personally identifiable information which is exempt from disclosure under the Public Records Law, M.G.L. c. 4, §7(26) (a) and (c). Personally identifiable information is exempt from disclosure by federal and state student and family privacy laws. See the federal Family Education Rights and Privacy Act (FERPA); the federal Individuals with Disabilities Education Act (IDEA), and the state student record statutes and regulations concerning confidentially of student record information. See 20 U.S.C. § 1232g, 20 U.S.C. § 1400; see also G. L. c. 71, §§ 34D, 60, G. L. c. 71B, § 1; and 603 CMR 23.00 et seq. See also Champa v. Town of Weston, 473 ----------------------- Mass. 86 (2015). The School also seeks “…a waiver of statutory limits to fees to review the documents responsive to the request.” The School notes it “…is not seeking the waiver for review of emails. A preliminary review of the documents for which the waiver is requested show that the documents relate to personnel matters and potential litigation and involve attorney client communications.” The School posits that “[t]he documents should be reviewed by an attorney, because city employees lack the legal training to properly assess the information. Benjamin & White, P.C.’s billing rate to the City of Framingham is $220.00 per hour. For the purposes of this petition, we would request a rate of $75.00 per hour, as your office has approved in the past.”

Phillip B. Benjamin, Esq. SPR22/0416 Page 5 February 25, 2022 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 City from charging for segregation and redaction that is required by law at $25.00 per hour. With respect to time, I find the City has established good cause for a time extension of 30 business days as described above. When preparing a fee estimate for the provision of the requested records the City 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 City 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 City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Naomi Martin Heather Stevenson, Esq. Amy Kane