Cox, Jr., Esq., William v. Andover, Town of (SPR 20140663)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords February 19, 2015 SPR14/663 Mr. Reginald Stapczynski Town Manager Town of Andover 36 Bartlett Street Andover, MA 01810 Dear Mr. Stapczynski: I have received the petition of William D. Cox, Jr., Esq., on behalf of his client, appealing the response of the Town of Andover (Town) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). With respect to this appeal, Attorney Cox requested copies of records related to payments the Town made for legal services in connection to matters involving his client. The Town's legal counsel, Joshua R. Coleman of Collins, Loughran & Peloquin, provided Attorney Cox with redacted copies of the responsive records. While a custodian may redact records where materials within the records fall into one or more of the Public Records Law exemptions, the custodian must prove detailed specificity concerning those exemption claims. Attorney Cox has appealed the fee estimate with respect to fees related to review of the responsive records by legal counsel. Attorney Cox has also appealed the redactions. Fee Estimate A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer generated copy of a public record. See 950 C.M.R. 32.06(1)(a). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Reginald Stapczynski SPR14/663 Page Two February 19,2015 In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). The reasonableness of a fee estimate is determined on a case-by-case basis. Attorney Cox objected to costs associated with the "less than one (1) hour" at your law firm's rate for segregation of the records. Generally, an attorney is not called upon to perform the task of segregation. I find the Town has not properly justified the need for any time by its legal counsel to review and segregate the records. It is unclear why such a task could not be performed by a Town employee with minimal, if any, support by legal counsel. Accordingly, the Town is hereby ordered to refund any overcharge. Common law attorney-client privilege The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10 ( c); 950 C.M.R. 32.08(4 ). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). I find that the Town has not met its burden under the Public Records Law with the attorney client privilege claim. In Attorney Coleman's letter, he stated that the responsive records were redacted pursuant to the attorney-client privilege. However, Attorney Coleman provides no citation of any authority for such a claim, nor does he explain how such a claim could justify redaction of all descriptions of services rendered in the responsive invoices. A copy of the redacted invoices was provided to this office by Attorney Cox. The October 16 response by Attorney Coleman is silent as to why the complete narratives contained in the legal invoices were redacted in their entirety, other than his sentence stating, "the records have been redacted of all information subject to the attorney client privilege."

Mr. Reginald Stapczynski SPR14/663 Page Three February 19, 2015 This statement fails to meet the burden of specificity required to deny access to public records. Accordingly, the Town is hereby ordered to respond to Attorney Cox within ten (10) days in a manner consistent with this order, the Public Reco sLaw and its Regulations. This administrative appeal is closed. I ,,ours, illiams Supervisor of Records cc: Mr. William D. Cox, Jr., Esq.