Celeste Hedequist v. Wellesley, Town of - Town Clerk (SPR 20242566)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 16, 2024 SPR24/2566 KC Kato Town Clerk Town of Wellesley 888 Worcester Street, Suite 140 Wellesley, MA 02482 Dear Ms. Kato: On September 11, 2024, this office received your petition on behalf of the Town of Wellesley (Town) seeking permission to waive statutory limits to fees and to charge for time spent segregating or redacting responsive records. 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, Celeste Hedequist. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On August 29, 2024, Ms. Hedequist requested emails from four identified individuals to a specified recipient between November 1, 2017 and January 1, 2018. Please note that in emails to this office on September 11, 2024 and September 12, 2024, Ms. Hedequist objected to the Town’s petition. Open Appeal This request is currently the subject of an appeal. See SPR24/2577. A determination will be issued separately within ten business days of receipt of the appeal. 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 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

KC Kato SPR24/2566 Page 2 September 16, 2024 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 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). 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 petition, in addition to charging for segregation and redaction required by law under Exemption (a) and under attorney-client privilege, the Town argues the following in support of its request to charge for segregation and redaction under Exemption (c) of the Public Records Law: The request includes emails sent or received by, among others, the Superintendent and members of the School Committee. As such, the records may contain

KC Kato SPR24/2566 Page 3 September 16, 2024 personnel information, medical, or other personal information pertaining to school employees or students. This information can be withheld and redacted under Exemption (c) because the public interest in the disclosure of such information does not outweigh the privacy interests. Guide, page 19. Such information may be redacted because its release may result in an unwarranted invasion of personal privacy to individuals. Personnel information may result in personal embarrassment to individuals. This information would not shed light on whether government officials are carrying out their duties in an efficient manner. As such, any public interest in the disclosure of this information likely does not outweigh the privacy interest, and this information can be redacted under Exemption (c). Based on the information provided in its fee 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). Fee in Excess of $25.00 per Hour In its petition, the Town states the following “the supervisor of records may approve a petition from an agency or municipality to charge for time spent segregating or redacting, or a petition from a municipality to charge in excess of $25 per hour” and argues the following in support of its petition This petition qualifies for a waiver under these criteria. As described above, the fee represents an actual and good faith representation to comply with the request. The fee is also necessary because the Town cannot properly respond to the request without segregating and redacting the records. It is likely that the records include information protected by FERPA, Massachusetts student records law, attorney client privilege, and Exemption (c). Even if the this petition is denied, the School Department will still need to undertake a review of the records and make redactions and will incur costs in doing so. The requestor should bear the cost for this review. The fee is also not designed to limit, deter, or prevent access to the records, but to recover the funds that the Town will have to expend in responding to this pending request. There is no broader public interest to be served by limiting the cost of Ms. Hedequist’s access to these records. Ms. Hedequist has not documented any inability to pay this reasonable fee. It is only fair to the citizens of Wellesley that the Town of Wellesley be allowed to recoup at least some of its costs in responding to this request The Town further states: After the Town has compiled the responsive records, an attorney will perform the review, segregation, and redactions necessary for production of the requested documents. An associate charges $215.00 per hour. Although Town Counsel will

KC Kato SPR24/2566 Page 4 September 16, 2024 be performing this review, in whole or in part, the Town is only seeking permission to charge an hourly rate of $25.00. Where the Town only seeks to assess fees at a rate of $25 per hour, I find it is unnecessary to opine on the Town’s request to charge fees in excess of $25 per hour. Conclusion Accordingly, I find the Town has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction limited to $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Further, this office encourages Ms. Hedequist and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) Please note, Ms. Hedequist 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: Celeste Hedequist