Patrick E. McDonough v. Town of Concord - Town Clerk's Office (SPR 20171018)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 3, 2017 SPR17/1018 Kevin D. Batt, Esq. Anderson & Kreiger, LLP Tmvn of Concord 50 Milk Street, 21st Floor Boston, MA 021 09 Dear Attorney Batt: I have received your petition on behalf of the Town of Concord (Town) requesting permission to charge more than $25 an hour for the provision of public records. G. L. c. 66, § lO(d)(iv). As required by law, the Town furnished a copy of this petition to the requester. G. L. c. 66, § 10 ( d)(iv)(2). Patrick McDonough, Esq. on behalf of his client requested various documents pertaining to Estabrook Road. The Town seeks permission to assess fees for segregation time at hourly rates in excess of $25 per hour. Petitions regarding fees 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, § lO(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 first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § lO(d)(iv). The second prong of the test is whether the fee represents an actual and good faith 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

Patrick McDonough, Esq. Page 2 August 3, 2017 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § lO(d)(iv). Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. I d. A maximum fee of five cents ($.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 hours ofemployee 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, § lO(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, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 CMR 32.06(4). Current petition In the Town's petition you indicate that the request "required the Town to search through records held by many departments (and in archives) across several centuries." The Town further indicates "the Town has dedicated no less than seven officials and staffers to comb various sources of records, some voluminous." The Town explains "the request calls for the Town to search many sources" including "a deep historical analysis oflong-dormant digests and primary sources for responsive documents." The Town's petition requests the Supervisor grant relief for Town employee hourly rates and attorney costs. In response to the Town's petition, Attorney McDonough sent a letter dated August 1, 2017. Attorney McDonough indicates requesters have "no objection to fees sought by Town for work done by Town employees." However, the requesters challenge the Town's attempt to charge in excess of $25.00 for the attorney hourly rates because "the Town failed to timely seek reimbursement according to the applicable regulations governing this [p ]etition and the concept of imposing such fees presents hurdles that are at odds with the purpose of facilitating access to public records pursuant to G.L. c. 66, § 10 et seq."

Patrick McDonough, Esq. Page 3 August 3, 2017 Ten business day provision in 950 CMR. 32. 06(4)(g) The Public Records Access Regulations (Regulations) provide that "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." The Town received the request on July 3, 2017 and provided a response on July 18, 201 i In its July 18th response the Town suggested having a phone call "to discuss the Town's response to your requests, the Town's cost estimate, and the possibility of narrowing the scope of your requests." It is my understanding that the parties had a phone conversation on July 19, 2017. Subsequent to this conversation the Town provided a fee estimate dated July 25, 2017, in which it indicated the requesters "agreed to some reductions in the scope of your Request, but declined to agree to other scope reductions." The Town submitted its current fee petition on July 26, 2017. In light of the Town aff1rmative efforts to disc.uss the scope of the re~uest after its initial reciept, including a conversation on July 19th and fee estimate dated July 25 , I find the Town's July 26th petition complied with the ten business day provision in 950 C.M.R. 32.06( 4)(g). Therefore, I will opine on the Town's request to assess fees in excess of $25.00 per hour. Hourly rate ofTown employees The Town is seeking to charge in excess of $25.00 per hour for two Town employees; the Town Clerk and a member of the Information Technology Department. Since the requestors do not object to the fees sought by the Tovvn for work done by Town employees, this portion of the Town's petition is granted. Hourly rate of attorneys The ToVIrn is also seeking to charge $250.00 an hour for the time it will take attorneys to review records for privileged information. The Town asserts this is the "lowest rate for Town Counsel attorney time." You further assert that "[t]he Request is broad enough to lasso Town emails 'concerning or relating to' each of their nine Requests, including many communications since the dispute arose." You also explain the Request expressly sought "any opinion letters issued by legal counsel" "concerning or relating to public statements made by [the] Town Manager." You indicate that "[b ]ecause review of records to determine whether they fall within either attorney client privilege or work product privilege requires the knowledge and skills of attorney, the petition seeks higher rates for attorney time spent in such review." 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, segregation or fee in excess of$25 per hour. See G. L. c. 66, § lO(d)(iv). However, I decline to approve the Town's

Patrick McDonough, Esq. Page 4 August 3, 2017 request for $250.00 per hour. Instead, in light of the factors in G. L. c. 66, § lO(d)(iv), I find the Town may assess a fee of $75.00 an hour for attorney review. 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 is not seeking full reimbursement for several Town employees. Conclusion For the reasons described above, I will allow the Town to charge for segregation fees in excess of $25 an hour for the provision of the requested records. However, this allowance is limited to the rate of $75.00 an hour. The To1vn must provide the records in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, the requester has the right to seekjudicial review of this decision by com1·nencing a civil action in the appropriate superior court. See G.L. c. 66, § lOA( c). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Peter McDonough, Esq.