David Nadeau v. North Middlesex Regional School District (SPR 20250399)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 14, 2025 SPR25/0399 Robin Eibye Records Access Officer North Middlesex Regional School District 66 Brookline Street Townsend, MA 01469 Dear Ms. Eibye: On February 11, 2025, this office received your petition on behalf of the North Middlesex Regional School District (School/District) requesting permission to charge for time spent segregating or 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, David Nadeau. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 8, 2025, Mr. Nadeau requested “...[a]ll email communications between 1/1/2025 till 2/8/2025, including but not limited to discussions, decisions, and correspondence involving, see below for the email address and committee member information [identified individual]...” 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 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

Robin Eibye SPR25/0399 Page 2 February 14, 2025 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 “to charge for time spent segregating and redacting a public records request received on February 8, 2025,” and provides the following information: [E]xemption (a): School Committee members receive communications from parents and students, whose identities and contact information are specifically and by 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

Robin Eibye SPR25/0399 Page 3 February 14, 2025 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. [E]xemption (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. Moreover, community members will occasionally share personal circumstances with Committee members and the Superintendent which may qualify as an unwarranted invasion of personal privacy. [E]xemption (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 School is seeking approval “to charge an hourly rate of $75 per hour spent redacting...” The School provides the following in support of its request to charge fees in excess of $25.00 per hour: [T]he redaction of the requested documents requires both knowledge in law and knowledge of the facts at issue. Accordingly, this redaction cannot be performed by a District employee; rather, it must be completed by legal counsel for the District. 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), (c), (o) and (p) 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.

Robin Eibye SPR25/0399 Page 4 February 14, 2025 In light of the School’s petition, I find the School has partially 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). The School may assess an hourly rate limited to $75.00 for attorney review for segregation and redaction under the attorney-client privilege. However, the School may not assess a fee in excess of $25.00 per hour for other tasks. G. L. c. 66, § 10(d)(iii). Conclusion Accordingly, to the extent the responsive records contain the exempt information described above, the School may assess a fee for segregation and redaction. Further, while the School may assess a fee limited to the hourly rate of $75.00 for attorney review, the School may not assess a fee in excess of $25.00 for other tasks. 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. Nadeau within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Mr. Nadeau 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: David Nadeau