Commonwealth Transparency v. Lincoln, Town of -- Public Schools (SPR 20240922)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 10, 2024 SPR24/0922 Parry Graham, Ed.D. Superintendent Lincoln Public Schools 6 Ballfield Road Lincoln, MA 01773 Dear Superintendent Graham: I have received the petition of Open Commonwealth (“requestor”) appealing the response of the Lincoln Public Schools (School/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 “all 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 SPR24/0922 Determination of the Supervisor of Records (March 26, 2024). In my March 26th determination, I found that the School met its burden for an extension of time, to assess a fee for segregation and redaction, and to assess a fee limited to $75.00 per hour for attorney review. Please note that SPR24/0922 is currently open for reconsideration. Concurrent with its petition, the School responded to the requestor on March 19, 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. 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

Superintendent Parry Graham, Ed.D. SPR24/0922 Page 2 April 10, 2024 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. 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 19th Fee Estimate In its March 19, 2024 response, the School provides a fee estimate totaling $300, and provides the following explanation in support of its fee estimate: The District is in possession of approximately 240 pages that are responsive to your request for invoices from legal counsel. . . . First, [the requestor] seek[s] 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.... Accordingly, the records will need to be reviewed to determine if they contain information protected by the attorney-client privilege and then any necessary redactions will need to be made[.]

Superintendent Parry Graham, Ed.D. SPR24/0922 Page 3 April 10, 2024 . . . Second, the records contain personally identifying information of public school students.... [B]illing 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. Further, since legal counsel is counseling the District on the educational services and programming that it is providing to students, especially special education students, these records should be deemed exempt from Public Records Law disclosure under Exemption (a) because ... state and federal regulations compel the District to protect educational records from disclosure.... At the very least, the records will need to be reviewed to determine if they contain any student information, and then any necessary redactions will need to be made. . . . Finally, these invoices require redactions in accordance with the exemption set forth at G.L. c. 4, § 7(26)(c).... In 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, leaves of absences, and discipline of employees. . . . The District estimates that it will take District Counsel approximately 1 minute per page to complete its review, segregation, and potential redaction of the records sought in your request. As a result, the District estimates a total of 4 hours. Additionally, the School explains that “the population of Lincoln is 7014” and therefore the School will assess a fee for the first two hours of work. The School further explains that it will charge an hourly rate of $75 per hour, which is lower than the rate of the lowest paid employee with the necessary skills to review and redact the records. As noted above, the School received approval to charge for segregation and redaction, and to charge a fee limited to $75.00 per hour for attorney review. See SPR24/0829 Determination of the Supervisor of Records (March 26, 2024). In light of the School’s March 19th response, I find 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.

Superintendent Parry Graham, Ed.D. SPR24/0922 Page 4 April 10, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Open Commonwealth