Celeste Hedequist v. Wellesley, Town of - Town Clerk (SPR 20251153)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 2, 2025 SPR25/1153 KC Kato Town Clerk Town of Wellesley 525 Washington Street, First Floor Wellesley, MA 02482 Dear Ms. Kato: On April 25, 2025, this office received your petition on behalf of the Town of Wellesley (Town) seeking permission to charge for time spent segregating or redacting responsive records, and relief from the obligation to produce 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, I understand that the Town furnished a copy of this petition to the requestor, Celeste Hedequist. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 11, 2025, Ms. Hedequist referred to a previous August 29, 2024 request, and sought the following: Please produce all of the documents in box 1. Please produce the subset of documents in box 2 and between [two named individuals]; and [two named individuals], respectively, from September 1, 2017 - December 29, 2017. Previously, on August 29, 2024, Ms. Hedequist made the following request: Emails between: 1. Court Prosecutor ... and/or Police Sargent ... and Superintendent ... between November 1, 2017 and January 1, 2018; 2. Former School Committee Member ... and Superintendent ... between November 1, 2017 and January 1, 2018; 3. Former School Committee Member ... and Superintendent ... between November 1, 2017 and January 1, 2018[.] 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

KC Kato SPR25/1153 Page 2 May 2, 2025 Petitions for an Extension of Time and for Relief from the Obligation to Provide Records Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(b). The Town’s Request for Relief In its petition, the Town requests “relief from responding to a portion of a public records request,” and argues the following in support of its request: The Town believes that her April 11, 2025 request for records responsive to Part 1 of her August 29, 2024 request is frivolous. Notably, the Town already provided her with all records responsive to this request on September 30. She has these records in her possession. Pursuant to G.L. c. 66, §10(c), the Town seeks relief from its obligation to provide these records a second time. See SPR17/1282 (relief granted when the requestor sought records that School Department had already produced to him). Ms. Hedequist and the Town are reminded that under the Public Records Access

KC Kato SPR25/1153 Page 3 May 2, 2025 Regulations, 950 C.M.R. 32.07(1)(a), “upon request, a requestor shall be entitled to receive in hand, by mail, by facsimile or electronically one copy of a public record or any desired portion of a public record.” [Emphasis added.] In this case, the Town has already provided copies of records responsive to Part 1 of the request, and is not required under the Regulations to provide additional copies of the same records. Consequently, I find it is unnecessary to address the Town’s request for relief. Petition to Assess Fees – Municipalities The Supervisor of Records (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. 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 determination 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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

KC Kato SPR25/1153 Page 4 May 2, 2025 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 to Assess Fees In its petition, “the Town seeks authorization to charge a fee for the time spent redacting the records responsive to Part 2 and Part 3 of her August 29, 2024 request, as modified on April 11, 2025.” The argues the following in support of its request: The responsive emails may contain information that is protected by Exemption (a) to the Public Records Law. Exemption (a) provides that materials “specifically or by necessary implication exempted from disclosure by statute” are not public records. M.G.L. c. 4, §7(26)(a). The Family Educational Rights and Privacy Act (FERPA) and implementing regulations protect the privacy of students’ education records by limiting disclosures of Personally Identifiable Information (“PII”) contained in such records. 20 U.S.C § 1232g, 34 C.F.R. Part 99. . . . Similarly, the requested records may also be protected under Massachusetts law pertaining to student records, which mandates that “no third party shall have access to information in or from a student record without the specific, informed written consent of the eligible student or the parent.” 603 CMR 23.07(4). . . . Many of the records may also contain information that is protected by the attorney-client privilege. Where many of the requested documents are communications between Town employees, Town Counsel may be included on a number of the emails. . . . Further, information in the records may fall within Exemption (c) to the Public Records Law, which protects from release personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. ... The request includes emails sent or received by, among others, the Superintendent and members of the School Committee. As such, the records may contain personnel information, medical, or other personal information pertaining to school employees or students. This information can be withheld and redacted under Exemption (c) because the public interest in the disclosure of such information does not outweigh the privacy interests. Guide, page 19. Such information may be redacted because its release may result in an unwarranted invasion of personal privacy to individuals. Personnel information

KC Kato SPR25/1153 Page 5 May 2, 2025 may result in personal embarrassment to individuals. This information would not shed light on whether government officials are carrying out their duties in an efficient manner. As such, any public interest in the disclosure of this information likely does not outweigh the privacy interest, and this information can be redacted under Exemption (c). Thus, the Town must review each record prior to release. It cannot simply provide access to these records that require review. The above is a recitation of what the Town deems to be the most likely bases for withholding records or redacting them once reviewed. The foregoing is not intended to limit the allowable bases for doing so, as the Town may discover additional bases upon review. . . . There are approximately 442 emails potentially responsive records to Part 2 and 231 emails potentially responsive records Part 3 of her modified August 29, 2024 request. As described above, School Department personnel must examine each record to determine whether it may be subject to an exemption under the Public Records Law. The Town estimates that it will take approximately 3 minutes, on average, to review, and as necessary, redact or withhold each of the 673 email records. This represents a total of approximately 33.65 hours. An associate attorney in the Town Counsel’s office is the lowest paid employee with the requisite knowledge for reviewing documents for the attorney-client privilege and information that may be protected under other federal and state laws. After the Town has compiled the responsive records, an attorney will perform the review, segregation, and redactions necessary for production of the requested documents. An associate charges $225.00 per hour. Although Town Counsel will be performing this review, in whole or in part, the Town is only seeking permission to charge an hourly rate of $25.00. The Town will not charge for the first two hours of time needed to segregate the responsive records. Thus, the total estimated cost to review and redact the records is $791.25 (31.65 hours x $25 – first 2 hours at no charge). It is also worth noting that it took approximately one hour to search for the responsive records. The Town intends to charge for this time at the rate of the lowest paid individual capable of performing the task or $25, whichever is less. . . . This petition qualifies for a waiver under these criteria. As described above, the fee represents an actual and good faith representation to comply with the request. The fee is also necessary because the Town cannot properly respond to the request without segregating and redacting the records. It is likely that the records include information protected by FERPA, Massachusetts student records law, attorney client privilege, and Exemption (c). Even if the Supervisor denies this petition, the School Department will still need to undertake a review of the records and make redactions and will incur costs in doing so. The requestor should bear the cost for this review.

KC Kato SPR25/1153 Page 6 May 2, 2025 The fee is also not designed to limit, deter, or prevent access to the records, but to recover the funds that the Town will have to expend in responding to this pending request. There is no broader public interest to be served by limiting the cost of Ms. Hedequist’s access to these records. Ms. Hedequist has not documented any inability to pay this reasonable fee. It is only fair to the citizens of Wellesley that the Town of Wellesley be allowed to recoup at least some of its costs in responding to this request. . . . As described above, the fee represents an actual and good faith representation to comply with the request. The fee is also necessary because the Town cannot properly respond to the request without segregating and redacting the records. It is likely that the records include information protected by FERPA, Massachusetts student records law, attorney client privilege, and Exemption (c). Even if the Supervisor denies this petition, the School Department will still need to undertake a review of the records and make redactions and will incur costs in doing so. The requestor should bear the cost for this review. In light of the Town’s petition, I find the Town has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, to the extent the responsive records contain the exempt information described above, the Town may assess a fee for segregation and redaction. Additionally, as explained above, it is unnecessary to address the Town’s request for relief. Please note, Ms. Hedequist 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: Celeste Hedequist