Stephen Voltz v. Beverly, City of - Public Schools (SPR 20243341)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 17, 2024 SPR24/3341 Erin Brown Executive Director of Operations Beverly Public Schools 70 Balch Street Beverly, MA 01915 Dear Ms. Brown: On December 12, 2024, this office received your petition on behalf of the Beverly Public Schools (School/District) 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 School furnished a copy of the petition to the requestor, Stephen Voltz. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 9, 2024, Mr. Voltz requested “[a]ll records relating to communications, including but not limited to, emails, text messages, memoranda, letters, reports, and meeting notes between 1) any City of Beverly employee, official, or representative and 2) [an identified individual] and/or any reporter, editor or other person associated with The National Review[.]” Please note that in an email to this office on December 13, 2024, Mr. Voltz objected to the School’s petition. 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). 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 SPR24/3341 Page 2 December 17, 2024 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). 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 to charge fees for segregation and redaction of the responsive records, and argues 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 SPR24/3341 Page 2 December 17, 2024 Exemption (c) The requested documents contain materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. In particular, the records likely contain personal contact information for individuals involved in the requested communications. It is understood that personal phone numbers and email addresses may be withheld pursuant to Exemption (c). See SPR 13/077. Exemption (o); Exemption (p) The requested documents may contain the home and/or personal email address and/or home telephone numbers of District employees or family members of District employees that have received payment/s from the District. Based on the information provided in its fee 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). Fee in Excess of $25.00 per Hour In its petition, the Department requests to charge a fee of $32.49 per hour, and provides the following in support of its request: Accordingly, the District seeks to assess higher fees for time spent redacting records that fall within statutory exemptions beyond Exemption (a) of G.L. c. 4, §7(26) given the likelihood that the aforementioned categories of information need to be redacted. Specifically, the District seeks approval to charge an hourly rate of $32.49 per hour spent searching for, compiling, redacting, and segregating responsive documents. This is the hourly rate of the lowest-paid District employee qualified to perform this work. The redaction of the 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 Exemption (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. The hourly rate associated with the lowest paid employee who has the necessary skill required to perform this task is $32.49 per hour. The purpose of assessing fees is to simply offset the costs that will be charged to the District in responding to this request and ensure that the District can properly redact information as required by G.L. c. 4, §7(26). Based on the School’s petition, I find the School has not met its burden to explain how 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).

Erin Brown SPR24/3341 Page 2 December 17, 2024 Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the School may assess a fee for segregation and redaction. However, I find the School has not met its burden to assess fees in excess of $25.00 per hour. Further, I encourage the parties to communicate to enable the School to provide records in an efficient and affordable manner. Please note, Mr. Voltz 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, §§ 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Stephen Voltz