Eric Gagnon v. Beverly, City of - Public Schools (SPR 20243270)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 12, 2024 SPR24/3270 Erin Brown Executive Director of Operations Records Access Officer Beverly Public Schools 70 Balch Street Beverly, MA 01915 Dear Ms. Brown: On December 4, 2024, this office received your petition on behalf of the Beverly Public Schools (School/District) requesting permission to assess fees for time spent segregating and redacting responsive records and seeking a waiver of statutory limits to 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 School furnished a copy of the petition to the requestor, Eric Gagnon. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 4, 2024, Mr. Gagnon requested “...[d]ocumented communications between December 21, 2023 – November 12, 2024 sent by, received by, or involving [an identified individual] (School Committee President and Chair of Negotiations Subcommittee) concerning the Beverly Teachers Unit A, B, and C contracts and strike.” 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 a municipality’s petition to allow the municipality to charge for time spent segregating or 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

Erin Brown SPR24/3270 Page 2 December 12, 2024 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). Petition to Assess Fees In its petition, the School requests permission “to charge for time spent segregating and redacting a public records request received on November 26, 2024” and provides the following in support of its request: [t]he requested records must be redacted where many of the responsive documents will meet the below inclusive, not exhaustive, exemptions set forth in G.L. c. 4, § 7(26).

Erin Brown SPR24/3270 Page 3 December 12, 2024 . . . [E]xemption (a): School Committee members receive communications from parents and students, whose identities and contact information are specifically and b[y] necessary implication exempted from disclosure by statute as student record/education record information under 603 C.M.R. 23.00 and the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g. School Committee members receive communications concerning executive session minutes, which are specifically and by necessary implication exempted from disclosure pursuant to G.L. c. 30A, § 22(f). . . . [A]ttorney-Client Privileged Communications: The requested communications contain information concerning advice provided by attorneys to the District and Committee members. These communications will need to be redacted to preserve attorney-client privilege. Please be advised, records custodians may assess fees for time spent segregating or redacting records where such segregation or redaction is required by law. See 950 C.M.R. 32.07(2)(d) (stating that fee for segregation or redaction is permissible when approved by Supervisor or when required by law). Where the School only seeks to assess fees pursuant to the Exemption (a) of the Public Records Law and attorney-client privilege, which are required by law, I find it unnecessary to opine on whether the School may assess fees for segregating and redacting the records. Fee in Excess of $25.00 per Hour In its petition, the School is seeking approval “to charge an hourly rate of $32.49 per hour spent searching for, compiling, redacting, and segregating responsive documents.” The School provides the following in support of its request to charge fees in excess of $25.00 per hour: [T]his is the hourly rate of the lowest-paid District employee qualified to perform this work. … [T]he redaction of requested documents requires both knowledge in law and knowledge of the facts at issue. 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. Based on 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 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 $32.49 for the tasks described above.

Erin Brown SPR24/3270 Page 4 December 12, 2024 Conclusion Accordingly, as described above, I find the School may assess a fee limited to $32.49 per hour. In light of the above, it is unnecessary to opine on the School’s petition for permission to charge for time spent segregating or redacting responsive records Further, this office encourages Mr. Gagnon and the School to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(a) municipality or agency 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 or agency to produce records sought more efficiently and affordably). 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 Mr. Gagnon within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Mr. Gagnon 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: Eric Gagnon