Open Commonwealth v. Lincoln, Town of -- Public Schools (SPR 20240829)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2024 SPR24/0829 Parry Graham, Ed.D. Superintendent Lincoln Public Schools 6 Ballfield Road Lincoln, MA 01773 Dear Superintendent Graham: On March 19, 2024, this office received your petition on behalf of the Lincoln Public Schools District (School) seeking an extension of time to produce records, 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 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, I understand 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, Open Commonwealth requested “all 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

Superintendent Parry Graham, Ed.D. SPR24/0829 Page 2 March 26, 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: Open Commonwealth appears to have made an identical request to every school district in the state. As a result, legal counsel will have to complete the necessary redactions for each of the districts it represents. It is not possible for legal counsel to review and redact the bills of all its clients within 10 business days. Therefore, District 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 District will be unable to produce the records during normal business hours of operation without an extension in light of the fact that its attorneys 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 scope of redaction required to prevent unlawful disclosure, 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). 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). In rendering such a decision, the Supervisor is required to consider the following: a) the

Superintendent Parry Graham, Ed.D. SPR24/0829 Page 3 March 26, 2024 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). Petition to Assess Fees In its petition, the School states that “the records sought in the request need to be reviewed, and potentially redacted, for several reasons. The District seeks the ability to charge for redactions under Exemption C.” In support of its request, the School argues that “in accordance with the exemption, the District needs to review and redact the billing statements to the extent they contain information concerning employees that relates to performance or complaints, evaluations of employees, requests for accommodations, leaves of absences, and

Superintendent Parry Graham, Ed.D. SPR24/0829 Page 4 March 26, 2024 discipline of employees.” Additionally, the School explains that “the records will need to be reviewed to determine if they contain information protected by the attorney-client privilege.” The School also explains that it will need to redact the records under Exemption (a), arguing that “they are protected by the Federal Education Rights Privacy Act, Massachusetts General Law, Chapter 71, Section 34A to 34H, and 603 CMR 23.00 et. seq.” 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 states the following concerning its request to charge a fee in excess of $25.00 per hour: 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 $260. Notwithstanding that rate, the District 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 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 attorney review. Conclusion Accordingly, I find the School has established good cause for a time extension of 30 business days as described above. 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. Please note, Open Commonwealth 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).

Superintendent Parry Graham, Ed.D. SPR24/0829 Page 5 March 26, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Open Commonwealth