Stephen Voltz v. Beverly, City of - Public Schools (SPR 20243342)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 16, 2024 SPR24/3342 Erin Brown Executive Director of Operations Records Access Officer 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) 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, Stephen Voltz. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 9, 2024, Mr. Voltz requested the following records: [1] All communications (including but not limited to emails, text messages, memoranda, letters, reports, and meeting notes) between any City of Beverly employee, official, or representative, and 2) any public relations, communications, media relations, or strategic communications firm, consultant, or contractor regarding: a. The Beverly teachers’ strike b. Any other Massachusetts teachers’ strike, potential strike, or contracted negotiations c. Communications strategy related to Beverly teacher contract negotiations d. Media strategy regarding teacher contract negotiations e. Draft or final press releases, statements, or other public communications about the strike or negotiation f. Social media strategy or content related to the strike or negotiations, or g. Messaging recommendations or advice regarding the strike or negotiations[;] 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 SPR24/3342 Page 2 December 16, 2024 [2] All drafts, revisions, or versions of: a. Press releases b. Public statements c. Social media posts d. Talking points e. Media responses f. Other public communications that were either created by, reviewed by, or shared with any public relations, communications, media relations, or strategic communications firm, consultant, or contractor regarding the strike or negotiations[;] [3] All contracts, invoices, billing or payment records, or other documentation showing: a. The identity of any public relations, communications, media relations, or strategic communications firm, consultant, or contractor retained by or providing services to the City regarding the strike or teacher/para contract negotiations b. Work performed by such firms/individuals related to the strike or negotiations and the cost for that work. 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 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

Erin Brown SPR24/3342 Page 3 December 16, 2024 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 December 9, 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). . . . [E]xemption (a): Strategy concerning teacher negotiations is discussed in executive session, and such minutes (and references to discussions in executive session) 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 may 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

Erin Brown SPR24/3342 Page 4 December 16, 2024 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 (emphasis added)). Where the School only seeks to assess fees pursuant to the Exemption (a) of the Public Records Law and attorney-client privilege, which is 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 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. In an email to this Division on December 13, 2024, Mr. Voltz objects to the School’s petition to assess fees, arguing “...[t]he District should not be permitted to charge any fee whatsoever because there is a strong public interest in uncovering the spending of taxpayer money on media consultants secretly retained to influence public opinion on a matter of public concern and the work, if any, done as a result of that spending.... The only redactions needed, if any, would be any personal address and phone numbers mentioned in the records, which is true for virtually all public records requests, and making such redactions requires no expertise...[t]here is no evidence whatsoever to support the District’s claim that the records requested are ‘voluminous.’” 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. 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

Erin Brown SPR24/3342 Page 5 December 16, 2024 Further, this office encourages Mr. Voltz 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. Voltz within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). 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, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Stephen Voltz