Jessica Villatoro v. Wayland, Town of - Public Schools (SPR 20243247)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 6, 2024 SPR24/3247 Diane Marobella Administrative Assistant to the Superintendent Records Access Officer Wayland Public Schools 41 Cochituate Road Wayland, MA 01778 Dear Ms. Marobella: On December 2, 2024, this office received your petition on behalf of the Wayland Public Schools (School/District) requesting permission to assess fees for time spent segregating and redacting responsive records. 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 the petition to the requestor, Jessica Villatoro. G. L. c. 66, § 10(d)(iv)(2). On November 15, 2024, Ms. Villatoro requested “[a]ny emails, meeting notes, etc...that were gathered or sent, internally, regarding my medical leave. I would like any email (including any that I was not included on and/or sent between any other district staff, and any meeting notes that mention my name and/or my medical leave, between the time period of 9/4 to the current date of 11/14.” In a follow-up email on November 15, 2024, Ms. Villatoro included any text messages (that mention/reference me and/or my medical leave) in my request.” 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

Diane Marobella SPR24/3247 Page 2 December 6, 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 School requests “[t]o charge for reactions under Exemption (c).” In support of its request, the School provides the following information: [F]irst, the request seeks all electronic communication. Those records likely contain the content of discussions between the District and its attorneys, for the purpose of obtaining legal advice, which has not been shared with the public and

Diane Marobella SPR24/3247 Page 3 December 6, 2024 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. . . . [S]econd, these emails require redactions in accordance with the exemption set forth at G.L. c. 4, § 7(26)(c).... [I]n accordance with the exemption, the requestor requested information specifically relative to a medical leave. The District needs to redact personal medical information relative to the leave. In an email to this office on December 2, 2024, Ms. Villatoro objects to the School’s petition to assess fees, arguing “...[I] have an issue with one of the District’s requests for the need for redaction. I am the employee requesting this information as it pertains to the emails and text messages, and personnel and medical files, regarding information involving myself...so there should be no invasion of privacy, as I am the employee requesting it.... [I]f the re[d]action is being completed by a district employee and being done during their work hours, I am not sure why I would need to pay an additional fee for redaction.” 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 segregation or redaction. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the School may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find the School 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 School may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the School to provide records in an efficient and affordable manner. 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 Ms. Villatoro within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Ms. Villatoro 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).

Diane Marobella SPR24/3247 Page 4 December 6, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Jessica Villatoro