Celeste Hedequist v. Wellesley, Town of - Town Clerk (SPR 20242577)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 25, 2024 SPR24/2577 KC Kato Town Clerk Town of Wellesley 888 Worcester Street, Suite 140 Wellesley, MA 02482 Dear Ms. Kato: I have received the petition of Celeste Hedequist appealing the response of the Town of Wellesley (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 29, 2024, Ms. Hedequist requested emails from four identified individuals to a specified recipient between November 1, 2017 and January 1, 2018. Prior Petition This request was the subject of a prior petition. See SPR24/2566 Determination of the Supervisor of Records (September 16, 2024). In my September 16th determination, I found that the Town had met its burden to assess a fee for segregation and redaction of the responsive records. The Town responded on September 11, 2024, providing a fee estimate. Unsatisfied with the Town’s response, Ms. Hedequist petitioned this office and this appeal, SPR24/2577, was opened as a result. Fee 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 reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents 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 SPR24/2577 Page 2 September 25, 2024 ($.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 hour if such rate is approved by the Supervisor 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s September 11th Response In its September 11, 2024 response, the Town provided a fee estimate of $378.75 and stated the following: Based on the Town’s preliminary search, there were 343 total emails that may be responsive to this request. . . . The Town estimated that it would take approximately 3 minutes, on average, to review, and as necessary, redact or withhold each of the 343 records (total of approximately 17.15 total hours). . . . The responsive emails may contain information that is protected by Exemption (a) to the Public Records Law. . . . The records at issue are maintained by Wellesley Public Schools and may identify specific students. Thus, the records must be reviewed to determine if they contain [Personally Identifiable Information (“PII”)] that is prohibited from disclosure under FERPA. Similarly, the requested records may also be protected under Massachusetts law pertaining to student records. . . [pursuant to] 603 CMR 23.07(4). . . . As discussed above, the records may contain information about a student that would not be subject to release. . . . Many of the records may also contain information that is protected by the attorney-client privilege. Where many of the requested documents are communications between Town employees, Town Counsel may be included on a number of the emails. . . . Because the consequences of disclosing attorney-client privileged materials to a third party may include a broad waiver of the privilege, careful review of all potentially privileged documents is paramount.

KC Kato SPR24/2577 Page 3 September 25, 2024 The request includes emails sent or received by, among others, the Superintendent and members of the School Committee. As such, the records may contain personnel information, medical, or other personal information pertaining to school employees or students. . . . [T]his information can be redacted under Exemption (c). . . . As described above, School Department personnel must examine each record to determine whether it may be subject to an exemption under the Public Records Law. The Town estimates that it will take approximately 3 minutes, on average, to review, and as necessary, redact or withhold each of the 343 email records. This represents a total of approximately 17.15 hours. An associate attorney in the Town Counsel’s office is the lowest paid employee with the requisite knowledge for reviewing documents for the attorney-client privilege and information that may be protected under other federal and state laws. After the Town has compiled the responsive records, an attorney will perform the review, segregation, and redactions necessary for production of the requested documents. 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 be performing this review, in whole or in part, the Town is only seeking . . . to charge an hourly rate of $25.00. The Town will not charge for the first two hours of time needed to segregate the responsive records. Thus, the total estimated cost to produce the records is $378.75 (15.15 hours x $25 – first 2 hours at no charge). The Town will only charge for actual time spent segregating and redacting records. Current Appeal In her appeal, Ms. Hedequist states, “[t]here is no break down of the number of records with respect to each [item of the] request. The Town attempting to state that there are over 300 documents as a basis for charging a fee is unsupported in light of the fact that they have not shown evidence of how many documents are responsive to each [item of the] request.” Where the Town states, “it would take approximately 3 minutes, on average, to review, and as necessary, redact or withhold each of the 343 records. . .” I find that it is unclear how many minutes per page the Town requires to review the responsive records. The Town must clarify whether the 3 minutes is required per page or per record. If the Town is assessing 3 minutes per page, I find it is not clear how the Town requires 3 minutes to review each page of the responsive records. If it is per record, I find the Town must clarify how many pages there are per record. The Town must clarify this matter. I encourage Ms. Hedequist and the Town to communicate in order to facilitate producing records efficiently and affordably. Ms. Hedequist may wish to narrow the parameters to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Town must use its knowledge of the

KC Kato SPR24/2577 Page 4 September 25, 2024 records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Ms. Hedequist with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Celeste Hedequist