Grace Gilson v. Brookline, Town of - Town Counsel (SPR 20241142)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 23, 2024 SPR24/1142 Joe Callanan, Esq. Town Counsel Town of Brookline 333 Washington Street, Sixth Floor Brookline, MA 02445 Dear Attorney Callanan: On April 16, 2024, this office received your petition on behalf of the Town of Brookline (Town) requesting permission to charge for time spent segregating or redacting responsive records and a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(c); 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 Town furnished a copy of the petition to the requestor, Grace Gilson. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 2, 2024, Ms. Gilson requested “records related to lawyer fees incurred by the Brookline Public Schools concerning special education complaints. Specifically, [I] am requesting all records, including but not limited to invoices, billing statements, contracts, correspondence, and any other relevant documentation, pertaining to lawyer fees incurred by the Brookline Public Schools in relation to special education complaints. [I] am interested in records covering the period from January 1, 2017 to March 14, 2024.” Petition to assess fees – Municipalities The 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 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

Joe Callanan, Esq. SPR24/1142 Page 2 April 23, 2024 a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public 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 understanding that this request was not made for a 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Current Petition In its petition, the Town requests permission to assess an hourly rate of $40.00 per hour “for compiling, segregating, redacting and reproducing a requested record.” In support of its request, the Town provides the following information: [P]ortions of such records responsive to your request would be exempt from the Public Records Law, G. L. c. 66, and 950 C.M.R. 32.00 (“PRL”, under exemption

Joe Callanan, Esq. SPR24/1142 Page 3 April 23, 2024 (a), the statutory exemption, exemption (c), the privacy exemption, exemption (d), as attorney work product, and as privileged attorney-client communication. … [E]xemption (a) would apply to portions of any responsive requested records or information that includes information specifically or by necessary implication exempted from disclosure by statute… … [S]imilarly, exemption (c) would also apply. This exemption absolutely exempts from public disclosure any medical information and any other information relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy… … [E]xemption (d) would also apply to any documents that constitute attorney work product. Where [you] seek “any other relevant documentation” associated with “lawyer fees incurred by the Brookline Public Schools concerning special education complaints,” responsive documents could certainly include attorney work product. “Invoices” and “billing statements” “related to lawyer fees incurred by the Brookline Public Schools concerning special education complaints” would very likely include descriptions of the work PSB attorneys have done on behalf of the district related to special education complaints. … Examples of information within the responsive documents that may be exempt from disclosure may include information about a student’s individualized educational program, their medical condition, accommodations they may receive that may reveal their medical condition, information about any possible medications they may take, and other personal or otherwise private information about those students. In which case, portions of those responsive documents may be exempt from public disclosure under both exemption (a) and (c) of the PRL. Similarly, information about a PSB attorney’s mental impressions, work performed in defense of a special education complaint, and communications with their PSB clients about that complaint may be exempt from public disclosure under both exemption (d) of the PRL and as privileged attorney-client communication. … [L]ikewise, documents containing attorney-client communications would also be exempt from the PRL. “Correspondence” “related to lawyer fees incurred by the Brookline Public Schools concerning special education complaints,” if between PSB lawyers and staff would almost certainly include privileged attorney-client communications exempt from public disclosure. In light of the Town’s petition, I find the Town has met its burden to explain how given the nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records

Joe Callanan, Esq. SPR24/1142 Page 4 April 23, 2024 contain the exempt information as described above, the Town 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 Town requests to “waive statutory limits to fees and seek to charge a fee of $40.00 per hour,” and provides the following in support of its request to charge fees in excess of $25.00 per hour: [$40.00 per hour] is clearly not “greater than the lowest hourly rate of a person capable of compiling, segregating, redacting, and reproducing a requested record.” … [The Town] does not have an employee with such necessary skill who is paid less than $25.00 per hour. The employees who are highlighted have not ever previously worked on responding to public records requests. Thus, while some may have a lower rate, they are not “capable” under the regulation without further training. If [we] were to train more employees on being capable of responding to public records requests, [we] would be much more likely to train higher rate employees than lower rate employees, due to the complexities of the Public Records Law. In light of the above, it is unclear how the request could not be prudently completed without a fee in excess of $25.00 per hour. Consequently, the Town has not met its burden to demonstrate why it must charge in excess of the statutory limit of $25.00 per hour in responding to the request made by Ms. Gilson. Conclusion Accordingly, as described above, to the extent the responsive records contain the exempt information described above, the Town may assess a fee for segregation and redaction. However, I find that the Town has not met its burden to assess fees in excess of $25.00. Further, this office encourages Ms. Gilson and the Town to continue to communicate 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 records sought more efficiently and affordably.) When preparing a fee estimate for the provision of the requested records, the Town is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Town must provide a response to Ms. Gilson within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4).

Joe Callanan, Esq. SPR24/1142 Page 5 April 23, 2024 Please note, Ms. Gilson 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: Grace Gilson Kerry Fleming, Esq. Ben Kaufman