Commonwealth Transparency v. Swampscott, Town of - Public Schools (SPR 20240872)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 4, 2024 SPR24/0872 Nancy-Jo Kelly Executive Assistant to the Superintendent/School Committee Swampscott Public Schools 207 Forest Avenue Swampscott, MA 01907 Dear Ms. Kelly: I have received the petition of Open Commonwealth appealing the response of the Swampscott 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.” The School responded on March 21, 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 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. 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

Nancy-Jo Kelly SPR24/0872 Page 2 April 4, 2024 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 21st Fee Estimate In its March 21, 2024 response, the School provides a total fee estimate of $50.00. In support of its estimate, the School explains the following: Given the nature of your request as stated above, in which you are seeking, in part, materials which relate to privileged information between School District employees and officials and school legal counsel regarding legal advice, the School District expects that portions of the invoices will be protected by the attorney-client privilege after a privilege review. . . . Where the lowest paid employees capable of doing this work are paid at rates of more than $25 per hour, you will be charged at the maximum rate of $25.00 per hour. In a chart included with its fee estimate, the School indicates it will charge for two hours for “School Counsel (to conduct privilege review).” Additionally, in an email to this office and the requestor on March 25, 2024, the School confirms “that the total good faith estimate is 2 hours for the time to review and make any necessary redactions for privileged information in the legal invoices requested. The school district is waiving any time for searching and locating the records requested.” Based on its March 21st and March 25th responses, the School has met its burden to explain that the hourly rate being used is less than that of the lowest paid employee with the

Nancy-Jo Kelly SPR24/0872 Page 3 April 4, 2024 necessary skills to perform the tasks, and has confirmed that the redactions are required by law under the attorney-client privilege, and has explained the amount of time it is allocating to redacting the records. However, based on the School’s response, it is unclear why the School requires two hours to redact the records. Specifically, the School has not provided any estimate as to how many responsive records it possesses, or how many pages the School may need to review for redaction. It is additionally unclear how much time the School expects to spend reviewing each record. The School must clarify this. For the reasons discussed above, I find the School must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the School is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Open Commonwealth