Ronald Alexander v. Wellesley, Town of - Board of Selectmen (SPR 20170443)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 2, 201 7 Meghan C. Jop, AICP Assistant Executive Director of General Government Services Town of Wellesley 525 Washington Street, 3rd Floor Wellesley, MA 02482 Dear Ms. Jop: I have received your petition on behalf of the Town of Wellesley (Town) to charge for time spent segregating or redacting public records in responding to requests made by Ronald Alexander for legal invoices. G. L. c. 66, § 10 (d )(iv). As required by law, the municipality furnished a copy of this petition to the requestor. G. L. c. 66, § 1 0( d)(iv)(2). 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, § 1 0(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. Id. Analysis 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. Id. 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) 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

Meghan C. Jop, AICP Page 2 March 2, 201 7 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 . Requests for legal invoices for Fiscal year 2015 and Fiscal year 2016 In the Town's petition dated February 23, 2017 you explain Mr. Alexander made several requests related to legal invoices. One such request was for legal invoices for Fiscal year 2015 (FY15) and Fiscal year 2016 (FY 2016). Mr. Alexander's most recent request for FY15 invoices was on January 16, 2017, in which he confirmed he was withdrawing his previous request for these records. Mr. Alexander's most recent request for FY16 invoices was on January 16, 2017, in which he confirmed he was withdrawing his previous request for these records. You further state "the Town redacted Town Counsel's invoices for FY15 and FY16 and has since provided those documents to Mr. Alexander at no charge" (emphasis in original). You also explain it took the Town "one (1) hour for locating responsive documents and five (5) hours for redaction" of the FY15 and FY16 legal invoices. Requests for legal invoices for October and November 2016 Mr. Alexander requested legal invoices for the months of October and November 2016. Mr. Alexander's most recent request for October and November 2016 invoices was on January 27, 2017, in which he confirmed he was withdrawing his previous request for these records. You state the "Town has since provided copies of Town Counsel invoices from October and November 2016 to Mr. Alexander at no charge" (emphasis in original). You explain the "Town required ten (10) minutes to locate Town Counsel invoices from October 2016 and November 2016, and thirty (30) minutes were spent reviewing and redacting those documents." Requests for legal invoices for September 2016 Mr. Alexander requested legal invoices for the month of September 2016. Mr. Alexander's most recent request for September 2016 invoices was on February 15, 2017, in which he confirm~d he was withdrawing his previous request for these records. Requests for legal invoices for July and August 2016 Mr. Alexander requested legal invoices for the months of July and August 2016. Mr. Alexander's request for September 2016 invoices was on February 15, 2017. Requests for legal invoices for December 2016 Mr. Alexander requested legal invoices for the month of December 2016. Mr. Alexander's request for September 2016 invoices was on February 16, 2017.

Meghan C. Jop, AICP Page 3 March 2, 2017 Combining ofa ll requests for legal invoices The Town explains "Mr. Alexander has already received Town Counsel invoices from FY15, FY16, October 2016 and November 2016. In responding to those four (4) requests, the Town spent a total of six ( 6) hours and forty (4 0) minutes locating, reviewing and redacting responsive documents." You state "[t]he Town did not request authorization to charge for those documents, but provided them to Mr. Alexander free of charge because it had originally estimated that production would take two (2) hours." The Town requests that it "be given credit for the six (6) hours and forty (40) minutes of time the Town has provided to Mr. Alexander free of charge and that all of Mr. Alexander's requests for Town Counsel invoices be considered together for purposes of setting a fee estimate." The Town would like "the work already performed to be counted as the initial two (2) hour period that must be provided free of charge, and for permission to charge for the time required to respond to new, related requests." Fee estimate The Town is seeking to charge a total fee of $58.33 for the production of records responsive to Mr. Alexander's requests for legal invoices from July, August, September, and December 2016. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id . A maximum fee of five cents ($.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 (two) 2 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 CMR 32.06(4). Based on its experience previously providing legal invoices, the Town estimates it will take "fifteen (15) to twenty (20) minutes" for the Town to produce each month of responsive invoices. Therefore, it estimates "a total of between sixty (60) and eighty (80) minutes necessary

Meghan C. Jop, AICP Page 4 March 2, 2017 for locating and redacting responsive documents." With respect to the hourly rate used, the Town explains "[d]ue to the nature of Town Counsel's work, Town Counsel invoices often contain information that is protected from disclosure. Moreover, because much ofthe protected information contained in legal invoices requires both knowledge of the law and knowledge of the facts surrounding Town Counsel's work, Town Counsel, or an associate in Town Counsel's office, is the lowest paid employee with the requisite knowledge for redacting legal invoices." You indicate the Town Counsel's office will bill the Town at a rate of$160.00 an hour for an associate's time. However, instead of seeking to charge the rate of $160.00 an hour or your rate of $61.97 an hour, the Town is seeking to charge an hourly rate of $50.00 an hour. You explain this is "less than one-third of the Town's actual cost for producing documents responsive to Mr. Alexander's requests." The total fee of $58.33 is comprised of seventy (70) minutes to locate and redact the records, which the Town explains "represents an average of the times described above that were required for locating and redacting similar documents," at a rate of $50.00 an hour. I find that in light of the similarity of the subject matter ofthe requests, as well as the time period in which these requests were made, Mr. Alexander's requests for legal invoices may be combined for purposes of providing this fee estimate. Given that the Town indicates it spent six (6) hours and forty (40) minutes previously producing responsive records, it may assess a fee for the time in excess of two (2) hours. G. L. c. 66, § 10 ( d)( iii). In addition, 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, segregation or fee in excess of $25 per hour. See G. L. c. 66, § 10(d)(iv). Therefore, I find the Town's estimate of seventy (70) minutes at a rate of $50.00 an hour to be reasonable. Accordingly, it is my determination that given the nature of the requests and the explanation in its February 23rd fee petition, the Town has met its burden to establish the fee of $58.33 is reasonable and appropriate. The Town has also demonstrated that the fees are not being levied to limit, deter, or prevent access to records, nor are the fees a result of charging the requestor a premium due to poor records management practices by the Town. This is particularly true in light of the fact that the Town already provided many of the responsive records at no charge. Considerations The Supervisor is required to consider the public interest served by limiting the cost of public access to the records. While the public benefits by minimal fees, if any, for the provision of public records, the Public Records Law allows for municipalities to recoup certain costs associated with responding to public records requests. G. L. c. 66, § 10 ( d). Given the nature of this request, the public interest is not limited by the assessing of search and segregation fees.

Meghan C. lop, AICP Page 5 March 2, 2017 Additionally, the Supervisor must consider the financial ability of the requestor to pay the additional or increased fees and any other relevant extenuating circumstances. This office has not received any documentation relative to the financial inability of the requestor to pay. Conclusion Based on the scope of the requests and the reasonable fees requested by the Town, I will allow the Town to charge for search and segregation fees and charge in excess of $25 an hour for the provision of the requested records. However, this allowance is limited to seventy (70) minutes at the rate of$50.00 an hour, totaling $58.33. Accordingly, the Town's petition is granted. Please note, the requester 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(d)(iv)(4). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ronald Alexander Eric Reustle, Esq.