Joanne McIntosh v. Wellesley, Town of - Public Schools (SPR 20233117)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 4, 2024 SPR23/3117 Cynthia D. Mahr Assistant Superintendent for Finance and Operations Records Access Officer Wellesley Public Schools 40 Kingsbury Street Wellesley, MA 02481 Dear Ms. Mahr: On December 27, 2023, this office received your petition on behalf of the Wellesley Public Schools (School) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the District furnished a copy of the petition to the requestor, Joanne McIntosh. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 22, 2023, Ms. McIntosh requested …[a]ll emails, text messages and other correspondence from September 2, 2023 to December 13, 2023 that satisfy all of the following criteria: mention the words and phrases “Spirit Week”, “Freedom Friday”, “Fitness Friday”, “America:, “OS”, “O.S.”, “flag”, “25 News”, “Olivia Spagnuolo”, “USA day”, “USA theme. Where the following individuals are either recipients or senders…[identified individuals]…Exclude emails of students with ‘@wpsraiders.org’ in the email address. Exclude any emails where town counsel are recipients. 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 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 D. Mahr SPR23/3117 Page 2 January 4, 2024 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). 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Current Petition In its petition, the School requests “authorization to charge a rate of $25 per hour for actual time spent by the Wellesley School Department to segregate and redact the requested

Cynthia D. Mahr SPR23/3117 Page 3 January 4, 2024 records.” G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). The School states the following in support of its petition: [E]xemption (a) of the Public Records Law: In this case, the requested emails are held by an educational institution – the Department – and may very likely pertain to named students. As such, the Department is required by law to review and redact all PII. The Department cannot simply provide these emails to [you]. … The records may also be protected by the Attorney-Client Privilege. The Department communicates with its counsel frequently regarding sensitive legal matters. It is possible that the responsive records include communication with Town Counsel and would need to be reviewed and redacted, as appropriate. … [I]t is also likely that these records include information protected from release under Exemption (c) of the Public Records Law…[I]n this case, the requested emails could contain highly personal information about students or staff members. The Department must conduct this essential review to determine whether such information warrants protection under Exemption (c). Based on the information provided in its fee 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 segregation or redaction. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the School has met its burden to explain how the request could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the School may assess a fee for segregation and redaction. Additionally, I encourage the parties to communicate further to enable the School to provide records in an efficient and affordable manner. Please note, Ms. McIntosh 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), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Joanne McIntosh