Commonwealth Transparency v. Arlington, Town of - Public Schools (SPR 20241063)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 17, 2024 SPR24/1063 Robert Spiegel Records Access Officer Arlington Public Schools 14 Mill Brook Drive Arlington, MA 02476 Dear Mr. Spiegel: On April 9, 2024, this office received your petition on behalf of the Arlington Public Schools (School) seeking permission to charge for time spent segregating or redacting responsive records, as well as a waiver of statutory limits on fees that may be assessed in responding to the request. 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 School furnished a copy of this petition to the requestor, Open Commonwealth (“requestor”). G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 5, 2024, the requestor sought “[a]ll invoices paid to any legal service provider for the time period January 1, 2019 – April 5, 2024.” Petition to Assess Fees – Municipalities The Supervisor of Records (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). 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. 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 determination that this request was not made for a 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

Robert Spiegel SPR24/1063 Page 2 April 17, 2024 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 April 9th petition, in addition to charging for segregation and redaction required by law under the Family Educational Rights and Privacy Act (FERPA), as it operates through Exemption (a), the School states the following in support of its request to charge for segregation and redaction of the responsive records under Exemption (c): Exemption (c)[:] Legal bills are likely to contain information related to an employee’s personnel/medical issue that required legal consultation. This includes, but is not limited to, employee disciplinary information and employee accommodations. Legal bills are also likely to contain information related to a student’s medical issues that required legal consultation. In light of the School’s petition, I find the School 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

Robert Spiegel SPR24/1063 Page 3 April 17, 2024 contain the exempt information as described above, the School 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 School is seeking a waiver of statutory limits on fees and provides the following in support of its request: [The School] seeks approval to charge an hourly rate of $75 per hour spent redacting… The redaction of the requested documents requires both knowledge in law and knowledge of the facts at issue. Accordingly, this redaction cannot be performed by a [School] employee; rather it must be completed by legal counsel for [the School]. In particular, the records requested must be reviewed and redacted by an individual who is knowledgeable, well-versed and trained in case law responsive to Exemptions (a) and (c), and specifically, how the Supervisor of Public Records and courts have interpreted the type of information that may be redacted and applying those decisions to the requested record. The hourly rate associated with the lowest paid employee who has the necessary skill required to perform this task is $250 per hour… I find the School 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 School may assess a fee limited to $75.00 per hour for the detailed tasks. Conclusion Accordingly, I find the School 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 G. L. c. 66, § 10(d)(iv), I find the School may assess a fee limited to $75.00 per hour for attorney review. When preparing a fee estimate for the provision of the requested records, the School is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The School must provide a response to the requestor within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). This office encourages the requestor and the School to communicate in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate.

Robert Spiegel SPR24/1063 Page 4 April 17, 2024 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