Mandy McLaren v. Brookline, Town of - Town Counsel (SPR 20231784)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 8, 2023 SPR23/1784 Joe Callanan, Esq. Town Counsel Town of Brookline 333 Washington Street, 6th Floor Brookline, MA 02445 Dear Attorney Callanan: On August 2, 2023, this office received your petition on behalf of the Town of Brookline (Town) seeking permission to charge for time spent segregating or redacting responsive records and 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 City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On July 25, 2023, Mandy McLaren, of The Boston Globe, requested “[s]ettlement agreements entered into by your School District with parents and guardians, from July 1, 2013 through [the date of the request], relative to the provision of special education services and/or educational placement(s) for students with disabilities.” 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, § 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

Joe Callanan, Esq. SPR23/1784 Page 2 August 8, 2023 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 Town indicates in its petition that “staff estimates they are likely to find more than 75 such settlement agreements. Each agreement is usually 15‐20 pages. Thus staff is likely to find more than a total of 1,500 pages including attachments of potentially responsive documents.” In addition to redactions required by law under Exemption (a) of the Public Records Law, the Town states the following regarding potential segregation and redaction of records responsive to Ms. McLaren’s request that “would be exempt... under... [E]xemption (c), the privacy exemption.” Examples of information within the agreements that may be exempt from disclosure may include information about a student’s individualized educational program, their medical condition, accommodations they may receive that may reveal their medical condition, information about any possible medications they may take, and other personal or otherwise private information about those students. In which case, portions of those responsive documents may be exempt

Joe Callanan, Esq. SPR23/1784 Page 3 August 8, 2023 from public disclosure under both [E]xemption (a) and (c) of the [Public Records Law].” In light of the Town’s petition, 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 or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Town 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 dated August 2, 2023, the Town seeks to “charge a fee of $40.00 per hour.” In support of its request, the Town states: Job Title Hourly Rate Town Counsel $79.54 First Assistant Town Counsel $68.53 Associate Town Counsel $70.08 Associate Town Counsel $65.81 Associate Town Counsel $65.81 Office Manager/Sr. Paralegal $40.49 Paralegal 55,429 $30.63 Sr. Clerk Typist Legal Part‐Time $25.99 The [Town’s Paralegal 55,429 and Sr. Clerk Typist Legal Part‐Time] have not ever previously worked on responding to public records requests. Thus, while some may have a lower rate, they are not “capable” under the regulation without further training. If we were to train more employees on being capable of responding to public records requests, we would be much more likely to train higher rate employees than lower rate employees, due to the complexities of the Public Records Law. Thus, $40 per hour is clearly not “greater than the lowest hourly rate of a person capable of compiling, segregating, redacting and reproducing a requested record.” 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). The Town may assess a fee for segregation and redaction at $40.00 per hour. Conclusion Accordingly, it is my determination that to the extent the responsive records contain the exempt information described above, the Town may assess a fee for segregation and redaction.

Joe Callanan, Esq. SPR23/1784 Page 4 August 8, 2023 Further, as described above, the Town may assess a fee for segregation and redaction at $40.00 per hour. This office encourages Ms. McLaren and the Town 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 Town 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. McLaren 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: Mandy McLaren