Robert N. Meltzer v. Concord, Town of - Town Clerk (SPR 20221902)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 23, 2022 SPR22/1902 Paul M. Kominers, Esq. Anderson & Kreiger LLP 50 Milk Street, 21st Floor Boston, MA 02109 Dear Attorney Kominers: On August 16, 2022, this office received your petition on behalf of the Town of Concord and Concord-Carlisle Regional School District (Town) seeking permission to charge for time spent segregating or redacting responsive records as well as a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(d)(iv). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On August 2, 2022, Attorney Robert N. Meltzer, of The Mountain States Law Group, requested thirty-one (31) categories of records concerning the Diversity, Equity, and Inclusion Commission (DEIC). Petitions 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 redacting records or to charge in excess of $25 an hour for the provision of public 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 the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the 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

Paul M. Kominers, Esq. SPR22/1902 Page 2 August 23, 2022 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 (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) Current Petition In its August 16th petition, the Town requests “...permission, pursuant to G.L. c. 66, § 10(d)(iv) and 950 C.M.R. § 32.06(4)(g) and (h), to charge fees in excess of $25 per hour to segregate and redact certain records initially requested on August 2, 2022 by Robert N. Meltzer, Esq.” The Town contends that “...documents responsive to Request 11 must be reviewed by an attorney to address student privacy and the attorney-client privilege. Incidents involving students are documented on incident report forms that contain personally-identifying information about those students. This information is shielded by federal laws such as FERPA and state laws such as 603 C.M.R. § 23.00. Champa v. Weston Public Schools, 473 Mass. 86 (2015). Improper or inadequate redactions may subject the School District to penalties. The incident reports may also contain other private, protected information such as information concerning disabilities. And, as the SJC made clear in Champa, identifying information that must be withheld may not always be obvious without close inspection and consideration of the relevant circumstances. The request is also broad enough to encompass communications concerning those incidents. Responsive

Paul M. Kominers, Esq. SPR22/1902 Page 3 August 23, 2022 communications may include privileged communications about the School District’s legal obligations with respect to those incidents. Because the request extends to the present day, responsive communications may address matters that are ongoing or even in litigation. In addition, those communications may also contain personally-identifying information that must be kept private under state and federal law.” The Town states, “[o]n the Town’s side: records responsive to Requests 11 and 18 must be reviewed by an attorney to determine whether they are attorney-client privileged. Request 11 seeks information on incidents that could easily implicate employment or civil rights. The Town often seeks advice from counsel on such matters. In Request 18, Attorney Meltzer has requested and the Town has agreed to search for communications with town counsel. An attorney must review any potentially responsive records to ensure that the attorney-client privilege is not compromised, particularly on matters that involve or could involve litigation.” With respect to fees, the Town states, “[g]iven that Attorney Meltzer’s request implicates information protected by federal and state student privacy laws or the attorney-client privilege, Concord is seeking to charge $100 per hour for segregation and redaction required by law. That is less than one-half the minimum rate for a junior associate at either Anderson & Kreiger or Murphy, Lamere & Murphy. Concord estimates that attorney review, including applying redactions, will require approximately 3 hours. Based on 3 hours and $100 per hour, the fee estimate for segregation and redaction as required by law is $300. Of course, Concord will make every effort to be efficient as possible with its review and only invoice Attorney Meltzer for time actually spent.” The Town posits that “[t]he rate is a significant discount from what this review will actually cost the Town and the School District. As explained above, after the Town and the School District identify and compile the responsive records, counsel will be required to review each document. To adequately identify and protect privileged information, that review must be performed by a person familiar with Concord’s privacy obligations and who is able to identify communications that seek or reflect legal advice, especially when direct communication with an attorney is not involved. That person must be an attorney.” Conclusion 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 redaction, segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). In light of the factors in G. L. c. 66, § 10(d)(iv), I find the Town may assess a fee limited to $75.00 per hour for attorney review. To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction at $75.00 per hour. This office encourages Attorney Meltzer and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist

Paul M. Kominers, Esq. SPR22/1902 Page 4 August 23, 2022 the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Please note the requestor 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, § 10A. Sincerely, Manza Arthur Supervisor of Records cc: Robert N. Meltzer, Esq. Kaari Mai Tai, Town Clerk Paige Tobin, Esq., Murphy, Lamere & Murphy