Open Commonwealth v. Somerset Public Schools (SPR 20240809)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 22, 2024 SPR24/0809 Robin Vaccaro Records Access Officer Somerset Public Schools 580 Whetstone Hill Road Somerset, MA 02726 Dear Ms. Voccaro: On March 15, 2024, this office received your petition on behalf of the Somerset 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 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 this petition to the requestor, Open Commonwealth. 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.” Petitions 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 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

Robin Vaccaro SPR24/0809 Page 2 March 22, 2024 (vi) the public interest served by expeditious disclosure. 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) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(b). Request for Additional Time to Produce Responsive Records In its petition, the School requests an extension of 30 business days and provides the following information in support of its request: [The School] is in possession of approximately one hundred fifty-six (156) pages that are responsive to [the] request for invoices from legal counsel… Open Commonwealth appears to have made an identical request to every school district in the state. As a result, it is not possible for legal counsel to review and redact the bills of all its clients within 10 business days. Therefore, [the School] hereby petitions for an extension of time to respond to that portion of the request that seeks legal invoices given that the scope of redaction required to prevent unlawful disclosure is significant. [The School] will be unable to produce the records during normal business hours of operation without an extension in light of the fact that its attorney will have to respond to similar requests for other districts and only counsel is able to review the bills to determine the application of the attorney-client privilege. I find that in light of the need to search for, collect, segregate and examine the records, and the capacity of the School to produce the request without the extension, the School has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). Accordingly, the School is granted an extension of 30 business days. 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).

Robin Vaccaro SPR24/0809 Page 3 March 22, 2024 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. 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). Current Petition In its March 15th petition, the School states the following in support of its request to charge for segregation and redaction of the responsive records under Exemption (c): In accordance with the exemption, [the School] needs to review and redact the billing statements to the extent they contain information concerning employees

Robin Vaccaro SPR24/0809 Page 4 March 22, 2024 that relates to performance or complaints, evaluations of employees requests for accommodations, leaves of absences, and discipline of employees. Additionally, the District states the following in support of a waiver of statutory limits on fees: In this case, the Office of District Counsel is the lowest paid employee with the necessary skill to determine whether the attorney-client privilege requires certain portions of the records Open Commonwealth seeks to be redacted. While performing that review, Counsel can also determine whether other exemptions apply, rather than have a separate employee review the records at additional cost. Counsel’s hourly rate is $245. Notwithstanding that rate, [the School] requests that the Supervisor allow it to charge $75 per hour to complete the review. 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, 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 G. L. c. 66, § 10(d)(iv), I find the School may charge the requested hourly rate of $75.00 per hour for the detailed tasks. G. L. c. 66, § 10(d)(iii). Conclusion Accordingly, I find the School has established good cause for a time extension of 30 business days as described above. Additionally, 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, 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 G. L. c. 66, § 10(d)(iv), I find the School may assess a fee limited to $75.00 per hour for attorney review. 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). This office encourages the requestor and the School to communicate 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 of 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 the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. 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).

Robin Vaccaro SPR24/0809 Page 5 March 22, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Open Commonwealth