Public Schools Data Exchanger v. Malden, City of - Public Schools (SPR 20240837)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2024 SPR24/0837 Shirley Dorai Records Access Officer Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Ms. Dorai: On March 8, 2024, this office received your petition on behalf of the Malden Public Schools (School) seeking an extension of time to produce records, 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, Public Schools Data Exchanger. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 5, 2024, the requestor sought the following records: [1] All invoices paid to any legal service provider for Open Meeting Law complaints/violations for the following years: 2021, 2022, 2023, 2024[;] [2] All invoices paid to any legal service provider for the following timeframe: January 1, 2019 – March 5, 2024[;] Petition 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; 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

Shirley Dorai SPR24/0837 Page 2 March 26, 2024 (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 (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) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition, the School requests an extension of 30 business days and provides the following information in support of its request: [The 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 only counsel is able to review the bills to determine the application of the attorney-client privilege. In light of the need to collect, segregate and examine the records, as well as the capacity of the Town to produce the records without an extension, the School has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The School is granted an extension of 30 business days. 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

Shirley Dorai SPR24/0837 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 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. 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 “the ability to charge for redactions under Exemption

Shirley Dorai SPR24/0837 Page 4 March 26, 2024 (c)” and provides the following in support of its request: [F]irst, the request seeks invoices for legal services provided by legal counsel to the District. Those records likely contain the content of discussions between the District and its attorneys, for purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney-client privilege. Second, the records contain personal identifying information of public school students. Finally, these invoices require redactions in accordance with the exemption set for at G. L. c. 4, § 7(26)(c). … [I]n accordance with the exemption, the District needs to review and redact the billing statements to the extent they contain information concerning employees that related to performance or complaints, evaluations of employees, requests for accommodations, leaves of absences, and discipline of employees. 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 “charge $75 per hour to complete the review,” and provides the following in support of its request to charge fees in excess of $25.00 per hour: [The District] seeks that the Supervisor allow it to charge for the redactions required under Exemption (c) for the reasons outlined in this letter. … [T]he 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. … [E]ach page of the invoices sought in the request must be reviewed to determine which exemption or privilege applies…[T]he District estimates that it will take District Counsel approximately 1.5 minutes per page to complete its review, segregation and potential redaction of the cords invoices Open Commonwealth seeks. In an email to this Division on March 19, 2024, the requestor objects to the School’s petition to assess fees, arguing “…[t]he requester is not interested in the data which the response purports to protect through redactions. Redactions are unnecessary insofar as the requestor only seeks financial information. This data is available and should be produced from the ERP or Accounting software that the school district and/or City uses for payments…[t]his is not a

Shirley Dorai SPR24/0837 Page 5 March 26, 2024 modification of the request, it is the original request and the Records Access Officer failed to communicate with the requestor to understand the request as it appears that they did not understand it.” 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 As described above, I find that the School has established good cause for a time extension of 30 business days. 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 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). 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: Public Schools Data Exchanger