Christine White v. Hull, Town of - Public Schools (SPR 20231694)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 28, 2023 SPR23/1694 Judith Kuehn Superintendent Hull Public Schools 18 Harborview Road Hull, MA 02045 Dear Superintendent Kuehn: On July 21, 2023, this office received a petition filed by Kevin S. Freytag, Esq., of Murphy, Hesse, Toomey & Lehane, LLP, on behalf of Hull Public Schools (School) seeking an extension of time to produce records, 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 a public records request. 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. Id. On July 8, 2023, Christine White requested “any and all invoices or other fee- related documents” associated with a named lawsuit. 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. 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

Judith Kuehn SPR23/1694 Page 2 July 28, 2023 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) must 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). Request for Additional Time to Produce Responsive Records In its July 21st petition, the School “requests an additional 10 business days to respond to this request.” The School explains that it “makes this request for additional time because the employee who will perform the search, segregation and redaction process has many other responsibilities, which she cannot ignore.” I find that in light of the capacity of the School to produce the records without an extension, the School has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(iii). The School is granted an extension of 10 business days. Petition to Assess Fees - Municipalities The 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 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;

Judith Kuehn SPR23/1694 Page 3 July 28, 2023 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). Permission to Assess Fees for Segregation and Redaction The School indicates in its petition that it “is in possession of approximately nearly four years of legal invoices that may be responsive to the request. Those records will need to be reviewed to determine if they are actually responsive records, and whether any redactions are appropriate and justified under the Public Records Law. Potential exemptions in these records might include, but not be limited to, Exemption (c) Privacy (e.g., personnel information) …” In light of 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 redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the School may assess a fee for the segregation and redaction of such exempt material. Permission to Charge in Excess of $25.00 per Hour In its petition, the School seeks permission “to charge $75 per hour to search for, segregate and potentially redact records that are responsive to the request.” In support of its request, the School states that the records may contain information that is confidential under “the attorney-client privilege and/or the work product doctrine, as they constitute communications between counsel and client for the purpose of providing legal advice to the School and the School officials.”

Judith Kuehn SPR23/1694 Page 4 July 28, 2023 The School further explains: In this case, the lowest paid employee who has the necessary skill required to search for, compile and reproduce the records requested, will be someone within my office who can determine whether the attorney-client privilege applies to any of the records you seek. This will entail reviewing individual time entries to determine whether the description of the work performed discloses information protected by the attorney-client privilege. 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). The School may assess a fee limited to $75.00 per hour in reviewing records under the attorney-client privilege. Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the School has established good cause for a time extension of 10 business days. Additionally, to the extent the responsive records contain the exempt information described above, the School may assess a fee for segregation and redaction. Further, as described above, the School may assess a fee limited to $75.00 per hour for attorney review. This office encourages Ms. White 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 that Ms. White 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), l0A(c). Sincerely, Manza Arthur Supervisor of Records cc: Christine White Kevin S. Freytag, Esq.