Commonwealth Transparency v. Fairhaven, Town of - Public Schools (SPR 20240868)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 4, 2024 SPR24/0868 Sheri Souza Records Access Officer Fairhaven Public Schools 128 Washington Street Fairhaven, MA 02719 Dear Ms. Souza: I have received the petition of Commonwealth Transparency appealing the response of the Fairhaven Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). 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.” Previous Petition This request was the subject of a previous petition from the School. See SPR24/0805 Determination of the Supervisor of Records (March 22, 2024). In my March 22nd determination, I found that the School may assess a fee for segregation and redaction, and that the School may assess a fee limited to $75.00 per hour for attorney review. Additionally, the School responded on March 22, 2024, providing a fee estimate. Objecting to the fees, the requestor appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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 Souza SPR24/0868 Page 2 April 4, 2024 establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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). The School’s March 22nd Fee Estimate In its March 22, 2024 response, the School provides a fee estimate for a total of $775.00, and provides the following explanation in support of the fees: The District possesses records responsive to [the] request. The District engages two separate law firms for ongoing legal services, and receives legal invoices on a monthly basis. The period of duration of [the] request is for sixty-two (62) months. On average, legal invoices are around five (5) pages in length. Accordingly, I estimate that there are at least six hundred and twenty (620) pages responsive to [the] request - three hundred and ten (310) pages for each law firm. Additionally, according to the U.S. Census, the Town of Fairhaven has a population of 15,837, therefore pursuant to 950 CMR 32.07(2)(m), the District may assess a fee for the first two (2) hours of time spent searching for, compiling, segregating, redacting and reproducing the requested records. The good faith fee estimate associated with the production of these records is as follows:

Sheri Souza SPR24/0868 Page 3 April 4, 2024 Item Estimated Time Rate Estimated Cost Review and redaction 10.33 hours $75.00 per hour $775.00 time Total estimated cost 10.33 hours $75.00 per hour $775.00 The District estimates that because of the amount of information exempt under G.L. c. 4, §7(26) will take an average of one minute to review and redact each page. This number is based on the need to carefully read each page, make the necessary determinations regarding whether the record contains exempt information, redact any confidential information contained in the records if found, and the possibility that other individuals may need to be consulted throughout this process. Assuming that each page will take an average of 1 minutes to review, I calculated for estimate purposes that assuming a one minute review time, it will take approximately 10.33 hours to review and redact all of the records. Additionally, the School explains that it anticipates making redactions pursuant to Exemption (a) of the Public Records Law and 20 U.S.C. § 1232g, along with Exemption (c). The School also confirms that it “is not assessing a fee for time spent searching for, compiling, segregating or reproducing the requested records.” In light of the information provided in the School’s March 22nd response, I find that the School has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). Conclusion As set forth above, I find the School has met its burden in responding to the request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency