Adam Simms v. Wellesley, Town of - Public Schools (SPR 20230043)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 17, 2023 SPR23/0043 Cynthia Mahr Assistant Superintendent for Finance and Operations Records Access Officer Wellesley Public Schools 40 Kingsbury Street Wellesley, MA 02481 Dear Ms. Mahr: I have received the petition of Attorney Alexandra Rubin on behalf of the Wellesley Public Schools (School/Department) seeking 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 December 22, 2022, Attorney Adam Simms requested the following: From January 1, 2018 to date, any correspondence including emails between the Wellesley School Department and Fusion Learning Inc. and/or Fusion Academy or anyone acting on their behalf, which concern or relate to Fusion’s interest in or efforts to open a private school in the Town of Wellesley. Petition to Assess Fees – Municipalities 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). 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 SPR23/0043 Page 2 January 17, 2023 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. 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 January 9, 2023 petition, the School requests to charge a fee of $43.86 per hour, and states that “there are approximately 3500 records potentially responsive to the request.” In support of its petition, the School explains the following: [P]ortions of the requested records may be protected under Exemption (a). ... In this case, many of the records may contain student information protected from release under the Family Education Rights Privacy Act (“FERPA”), 20 U.S.C § 1232g and 34 C.F.R. Part 99. ... It is also likely that these records constitute part of a student record as described by M.G.L. c. 71, §§ 34D, 34E. To the extent that these correspondences identify particular students, the Department is prohibited

Cynthia Mahr SPR23/0043 Page 3 January 17, 2023 by Massachusetts law to release them to third-parties. See 603 CMR 23.07. . . . Portions of the requested records may be protected under . . . the attorney-client privilege. It is common for Department staff, in the context of students potentially attending Fusion, to ask special education counsel for legal advice and for such advice to be given via email or other written correspondences. Such communications are not subject to release under the Public Records Law. The records must be reviewed to ensure that the privilege remains intact. In addition, the School provides the following information concerning the hourly rate of the lowest paid employee who has the necessary skill required to conduct the segregation and redaction described above: [The Assistant Superintendent for Finance and Operations] is the lowest paid employee capable of performing this review; the costs associated with [her] are $87.91 per hour. She has the authority to review these records, which may include confidential medical information. She also has the full understanding of FERPA and can interpret that law as it applies to records. However, rather than requesting to assess fees at the actual rate for [her] time, 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. The School also states that it “is not seeking to recover any costs associated with Town Counsel’s review of this request, if necessary.” Based on the School’s petition, I find the School 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 for the tasks described above. Conclusion Accordingly, as described above, the School may assess a fee limited to $43.86 per hour. This office encourages Attorney Simms and the School to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Any subsequent fee estimate from the School must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Attorney Simms 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),

Cynthia Mahr SPR23/0043 Page 4 January 17, 2023 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Adam Simms, Esq. Alexandra Rubin, Esq.