Newman, Esq., Rebecca v. Milton, Town of - Town Administrator (SPR 20150643)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 7, 2015 SPRlS/643 Mr. Geoffrey Wermuth, Esq. Murphy, Hesse, Toomey & Lehane, LLP Crown Colony Plaza 300 Crown Colony Drive; Suite 410 Quincy, MA 02169 Dear Attorney Wermuth: I have received the petition of Rebecca Newman, Esq. of Newman & Newman, P.C. on behalf of her client Michael Moxley appealing the response of the Town of Milton (Town) to her request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Newman requested a copy of the investigation report prepared for the Town by Robert J. Pomeroy, Esq., of Pomeroy Resources, Inc. regarding a complaint filed against an employee of the Town (Pomeroy Report). The Town denied the request under Exemption (c) of the Public Records Law. See SPR14/598 Determination ofthe Supervisor of Records (November 26, 2014). In July 2015 this office reviewed the report in camera, ordered the Town to disclose the report in redacted format, and send Attorney Newman a written estimate. See SPR15/158 Determination ofthe Supervisor ofRecords, (July 13, 2015). Basis of this appeal Upon receipt of a written estimate of $418.20, Attorney Newman appealed. The Town's July 28, 2015 assessed "segregation time" and physical copies of the report; however the Town failed to meet its burden of providing a detailed estimate. The Town's estimate was void ofthe number of hours necessary to segregate exempt material from the content of the report, the hourly rate of the lowest paid individual who is capable of conducting the segregation, and the number of copies at twenty cents per page. 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 ($1 0.00), 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Geoffrey Wermuth, Esq. SPR15/643 Page Two December 7, 2015 The Regulations provide that in cases where 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 "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The segregation fee must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). Subsequent to the opening of this appeal, the Town provided a revised fee estimate to Attorney Newman, a copy of which was provided to this office. In the November 19, 2015 estimate the Town estimates two (2) hours of segregation time for you at two hundred dollars ($200.00) per hour to review and segregate exempt material from ninety-one (91) pages of the Pomeroy Report. The Town estimates twenty ($.20) per page a copy of each of the pages. You advised Attorney Newman that to save her the expense for paper copies, you could send the redacted report via electronic mail. In a December 3 telephone call to you, an attorney on my staffurged you, as the Town's Legal Counsel to revise the hourly rate assessed for segregation, by using the hourly rate of a paralegal within the firm. In response to the telephone call, you stated in your December 4 email to this office that two hundred dollars is the hourly rate your firm charges the Town for legal work and that you do not believe that a paralegal would have the requisite knowledge to understand what should be redacted as "personnel" information. My staff attorney urged you to consider assessing a lower hourly rate. The Regulations stress that the task should be undertaken and completed by the lowest paid employee capable of that particular task, and within the Town department where the records are located, not the employee the custodian chooses to use. It is a rare case where an Attorney or any other high-ranking, highly paid individual or employee is the only individual capable of segregating information (redacting information) from a responsive record. I find the Town has not met its burden to show that you are the only person capable of redacting the responsive record. Accordingly, I find that the November 19, 2015 estimate provided to Attorney Newman is unreasonable and must be revised. The Town is hereby ordered to provide Attorney Newman with a revised estimate for her public record request for the Pomeroy Report within ten (1 0) days. A copy of the revised written, food faith estimate must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Once the fees are paid, the Town must provid the responsive record. This f I administrative appeal is closed. cc: Ms. Rebecca Newman, Esq.