Commonwealth Transparency v. South Shore Educational Collaborative (SPR 20240920)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 10, 2024 SPR24/0920 Richard Reino Executive Director South Shore Educational Collaborative 75 Arlington Street Hingham, MA 02043 Dear Mr. Reino: I have received the petition of Open Commonwealth (“requestor”) appealing the response of the South Shore Educational Collaborative (District) 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.” Prior Petition This request was the subject of a prior petition. See SPR24/0848 Determination of the Supervisor of Records (March 26, 2024). In my March 26th determination, I found that the District had established good cause for a time extension of 30 business days, had met its burden to charge for segregation and redaction, and that it may assess a fee limited to $75.00 per hour for attorney review. On March 20, 2024, the District responded, providing a fee estimate. Unsatisfied with the District’s response, the requestor petitioned this office and this appeal, SPR24/0920, was opened as a result. Fees Estimates - Municipalities 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. 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 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 Reino SPR24/0920 Page 2 April 10, 2024 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 (two) 2 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 how 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 District’s March 20th response In its March 20, 2024 response, the District provided a fee estimate of $87 and stated the following: [The District] is in possession of approximately 175 pages that are responsive to your request for invoices from legal counsel… First, [the requestor] 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 personally identifying information of public school students… billing statements and invoices between [the District] and legal counsel contain personally identifying information of public school students who enjoy mandated confidentiality; indeed, such documents if released, would reveal the identities, disabilities and information on their educational programming… Finally, these invoices require redactions in accordance with [Exemption (c)]… … 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 [the requestor] seek[s] 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 $270. Notwithstanding that rate, [the District] will request that the Supervisor allow it to charge $75 per hour to complete the review… In this case, the lowest paid employee who has the necessary skill required to search for the records requested is a salaried employee who effective hourly rate exceeds $25

Richard Reino SPR24/0920 Page 3 April 10, 2024 per hour. Notwithstanding that rate, a rate of $25 per hour will be used for search time. [The District] spent forty-five minutes searching for the records. [The District] estimate[s] that it will take District Counsel approximately 1 minutes per page to complete its review, segregation, and potential redaction of the records sought in [the] request. As a result, the District estimate a total of 2.91 hours… [the requestor] will not be charged for the first two (2) hours of those services. .91 hours multiplied by $75 per hour yields a fee estimate of $68.25 plus $18.75 for search… [The District] will not begin to review the records [the requestor] seek[s] until it receives a check in the amount of $87. Subsequent to the opening of this appeal, on April 2, 2024, the District sent an email to this office and stated the following: [The District] has sufficiently quantified and explained its estimate of 1 minute per page to redact the responsive documents. However, by way of further explanation, the Office of Counsel has experience reviewing legal invoices in response to public records requests, including legal invoices in the possession of school districts. Based on the experience of the Office of Counsel, [the District] has determined that Counsel’s review of these types of records takes approximately 1-2 minutes per page. [The District’s] fee estimate utilizes the low end of this range. Additionally, [District] attorneys are the lowest paid employee with the necessary skill to determine what information contained within the invoices is protected by the attorney-client privilege. The invoices contain descriptions regarding legal services provided by attorneys to [the District]. These descriptions often contain information protected by the attorney-client privilege, including the content of communications between counsel and [District’s] employees. Furthermore, the invoices provided by the law firm may also contain student and personnel information which would permit the identification of those students or personnel, including, in some instances, the names of individuals. The attorneys may redact this information pursuant to Exemptions (a) and (c) at the same time that it reviews the records for information protected by the attorney-client privilege. In doing so, [the District] will reduce the time spent redacting any responsive documents. As a result, and as described in [the District’s] fee petition, its attorneys are the lowest paid employee with the necessary skill to redact the responsive records. The fact that other schools improperly did not do so, does not mean that [the District] should do the same. Current Appeal In the appeal petition, the requestor states, “[m]any districts have responded to the

Richard Reino SPR24/0920 Page 4 April 10, 2024 request, including the records requested as proposed by the [District], which require nearly zero redactions and the claims of [the District] are bogus and designed to thwart the requestor from receiving the requested records. The District did not provide a ‘Good Faith’ estimate…” In this case, where the District has explained that it will charge for search and reproduction of the records, and has explained the amount of time required to search for records, the amount of minutes per page that it will take to review and redact the records, and confirmed that the lowest paid individual with the necessary skill is paid more than $25 per hour, I find the District 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). I encourage the requestor and the District to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Open Commonwealth