Open Commonwealth v. South Shore Educational Collaborative (SPR 20240848)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2024 SPR24/0848 Richard L. Reino Records Access Officer South Shore Educational Collaborative 75 Abington Street Hingham, MA 02043 Dear Mr. Reino: On March 20, 2024, this office received your petition on behalf of the South Shore Educational Collaborative (District) 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 District furnished a copy of the 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.” 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; (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. 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

Richard L. Reino SPR24/0848 Page 2 March 26, 2024 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 District requests an extension of 30 business days and provides the following information in support of its request: [O]pen 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. … [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. In light of the need to collect, segregate and examine the records, as well as the capacity of the District to produce the records without an extension, the District has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The District 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 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).

Richard L. Reino SPR24/0848 Page 3 March 26, 2024 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 District requests “the ability to charge for redactions under Exemption (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

Richard L. Reino SPR24/0848 Page 4 March 26, 2024 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 relates to performance or complaints, evaluations of employees, requests for accommodations, leaves of absences, and discipline of employees. In light of the District’s petition, I find the District 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 District 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 District 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: [T]he District seeks that the Supervisor allow it to charge for the redactions required under Exemption (c) for the reasons outlined in this letter. … [I]n 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. I find the District 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 District may assess a fee limited to $75.00 per hour for the detailed tasks. Conclusion As described above, I find that the District 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 District may assess a fee for segregation and redaction. Additionally, I find the District 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, §

Richard L. Reino SPR24/0848 Page 5 March 26, 2024 10(d)(iv), I find the District may assess a fee limited to $75.00 per hour for attorney review. Further, this office encourages the requestor and the District 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: Open Commonwealth