Celeste Hedequist v. Wellesley, Town of - Public Schools (SPR 20220501)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 7, 2022 SPR22/0501 Cynthia Mahr Assist. Superintendent of Finance and Operations Wellesley Public Schools 40 Kingsbury Street Wellesley, MA 02481 Dear Superintendent Mahr: I have received your petition on behalf of the Wellesley Public Schools (School) seeking a waiver of statutory limits on fees that may be assessed in responding to a public records request. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the School furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On February 14, 2022, Celeste Hedequist requested, “any and all communications within the last five years [February 2017-February 2022] from any attorney that does not represent the school, town, or any town employee, to [a named individual] and/or any member on the school committee.” 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). It is my determination that this request was not made for a commercial purpose. 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

Cynthia Mahr SPR22/0501 Page 2 March 7, 2022 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) 2 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) 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 petition, the School stated: There are approximately 3,850 potentially responsive records. Ms. Mahr is the lowest paid employee capable of performing this review; the costs associated with Ms. Mahr are $87.91 per hour. She has the authority to review these records,

Cynthia Mahr SPR22/0501 Page 3 March 7, 2022 which may include confidential privacy information. She also has the full understanding of FERPA and can interpret that law as it applies to records. However…the School Department only seeks permission to charge $43.86 per hour, which is the hourly rate of…the Administrative Assistant to the Assistant Superintendent of Finance and Operations … As described above, the fee represents an actual and good faith representation to comply with the request. The fee is also necessary because the School Department cannot properly respond to the request without segregating and redacting the records. It is likely that the records include information protected by FERPA, the Massachusetts School Records Law, and highly sensitive privacy information and witness statements. Even if the Supervisor denies this petition, the School Department will still need to undertake a review of the records and make redactions, and the School Department will incur costs in doing so … Additionally, the increase in the fee from $25 per hour to $43.86 per hour is not only modest but is far less than the School Department will actually incur in responding to the request. The fee is also not designed to limit, deter, or prevent access to the records, as demonstrated by the School Department’s willingness to charge only the hourly rate of Ms. Ball for the review of the emails … Finally, there is no broader public interest to be served by limiting the cost of Ms. Hedequist’s access to these records. Ms. Hedequist has not documented any inability to pay the reasonable fee and the allowance of this fee petition is consistent with recent previous determinations of this office. I find the Town has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). I find the School may assess a fee limited to $43.86 per hour. Conclusion Accordingly, I find the School has established good cause for assessing a fee limited to $43.86 per hour. Please note, Mr. Carroll 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(d)(iv)(4), 10A(c).

Cynthia Mahr SPR22/0501 Page 4 March 7, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Celeste Hedequist