Commonwealth Transparency v. Fairhaven, Town of - Public Schools (SPR 20240805)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 22, 2024 SPR24/0805 Sheri L. Souza Records Access Officer Fairhaven Public Schools 128 Washington Street Fairhaven, MA 02719 Dear Ms. Souza: On March 15, 2024, this office received your petition on behalf of the Fairhaven Public Schools (School) seeking permission to charge for time spent segregating and redacting responsive records and a waiver of statutory limits to fees that may be assessed in responding to the request. 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 School furnished a copy of the petition to the requestor, Commonwealth Transparency. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 10, 2024, the requestor sought “[a]ll invoices paid to any legal service provider for the time period, January 1, 2019 – March 10, 2024.” 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 understanding that this request was not made for a commercial purpose. 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

Sheri L. Souza SPR24/0805 Page 2 March 22, 2024 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). Petition to Assess Fees In its petition, the School requests “to charge for time spent segregating and redacting[,]” and provides the following in support of its request: [E]xemption (a): Legal bills are highly likely to contain information specifically or by necessary implication exempted from disclosure by statute, because they would contain student record/education record information under 603 CMR 23.00 and the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g. … [E]xemption (c): Legal bills are likely to contain information related to an employee’s personnel/medical issue that required legal consultation. This

Sheri L. Souza SPR24/0805 Page 3 March 22, 2024 includes, but is not limited to, employee disciplinary information and employee accommodations. Legal bills are also likely to contain information related to a student’s medical issues that required legal consultation. 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. Fee in Excess of $25.00 per Hour In its petition, the School is seeking to “assess higher fees for time spent redacting records that fall within statutory exemptions beyond Exemption (a) of G. L. c. 4, § 7(26),” and provides the following in support of its request to charge fees in excess of $25.00 per hour: [T]he District seeks approval to charge an hourly rate of $75 per hour spent redacting, an amount typically approved by your office in response to fee petitions of this nature. … [T]he redaction of the required documents requires both knowledge in law and knowledge of the facts at issue. Accordingly, this redaction cannot be performed by a District employee; rather, it must be completed by legal counsel for the District. In particular, the records requested must be reviewed and redacted by an individual who is knowledgeable, well-versed and trained in case law response to Exemptions (a) and (c), and specifically, how the Supervisor of Public Records and courts have interpreted the type of information that may be redacted and applying those decisions to the requested record. In an email to this Division on March 15, 2024, the requestor objects to the School’s petition to assess fees, arguing “…[t]he District has failed to enumerate the number of responsive records, as such there is no ability to understand the level of effort required by the District and there is no fee estimate provided detailing the actual costs estimated.” 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 $75.00 per hour for the detailed tasks. Conclusion Accordingly, 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 find the School has met its burden to explain how, given the nature of the responsive records, the

Sheri L. Souza SPR24/0805 Page 4 March 22, 2024 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 See G. L. c. 66, § 10(d)(iv), I find the School may assess a fee limited to $75.00 per hour for attorney review. Further, this office encourages the requestor and the School to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii). When preparing a fee estimate for the provision of the requested records, the School is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The School must provide a response to the requestor within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). 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, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency