Naomi Martin v. Fall River, City of - Public Schools (SPR 20220417)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 25, 2022 SPR21/0417 Debra Cabral Administrative Assistant Fall River Public Schools 417 Rock Street Fall River, MA 02720 Dear Debra Cabral: On February 18, 2022, this office received your petition on behalf of the City of Fall River 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

Debra Cabral SPR22/0417 Page 2 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).

Debra Cabral SPR22/0417 Page 3 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 requests “...authority to charge a fee for segregation and redaction, and to do so in excess of the maximum hourly rate of $25.00/hour. 950 CMR 32.06(4)(h).” The School states, “[t]his public records request seeks, among other documents: fifteen (15) years of legal invoices and vendor contracts related to investigations of harassment, discrimination, bullying and other misconduct; investigation reports of harassment, discrimination, bullying and other misconduct; and communications, student records, and employee records relating to these investigations.” The School contends that “[t]he bulk of the requested documents will contain confidential information that is exempt from disclosure… A non-exhaustive list of exemptions that are expected to apply to responsive documents follows: (1) Information within legal invoices that are protected by the attorney-client privilege. See Suffolk Construction Co., Inc., v. Division of Capital Asset Management, 449 Mass. 444, 451 (2007). (2) Documents that contain personally identifiable information regarding students of the District will be redacted pursuant to M.G.L. c. 4, § 7(26)(a), because personally identifiable information in education records/student records is specifically exempted from disclosure pursuant to several statutes, including: the Family and Educational Rights and Privacy Act (FERP A); the Individuals with Disabilities Education Act (IDEA); M.G.L. c. 71B; M.G.L. c. 71, § 34D; and the regulations implementing these statutes. (3) Documents that contain medical, personnel, or other information relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. M.G.L. c. 4, § 7(26)(c). (4) Employee personal contact information. M.G.L. c. 4, § 7(26)(o).” The School states, “[t]o determine precisely what must be redacted, and the legal basis for each redaction, the [School] requires the services of its legal counsel. The [School] is also requesting authorization to charge counsel's hourly rate for the segregation and redaction work. For the [School’s] search time, the fee being charged is $25.00 per hour. In making this request, the [School] asserts that its counsel’s hourly rate is reasonable, and further, that imposing this fee is necessary since the request cannot be ‘prudently completed without the redaction, segregation or fee in excess of $25 per hour.’ M.G.L. c. 66, § 10(d)(iv).”

Debra Cabral SPR22/0417 Page 4 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 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. 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 Heather Stevenson, Esq.