Michael Martin v. Wareham, Town of - Fire District (SPR 20180250)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 2, 2018 SPR18/250 Leo J. Peloquin, Esq. Collins, Loughran, & Peloquin, P.C. 220 Norwood Park South, Suite 1D Norwood, MA 02062 Dear Attorney Peloquin: I have received your petition on behalf of the Wareham Fire District Water Department (District) seeking to charge a fee in excess of $25 an hour. G. L. c. 66, § 10 (d )(iv). On February 13, 2018, Michael Martin requested monthly legal bills to the Water Department since September 1, 2015. Petitions for ability to assess fees Municipalities may not assess a fee for the first 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, § 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. 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 (Supervisor) under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 CMR 32.06(4 ). The 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, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 1 0( d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the 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

Leo J. Peloquin, Esq. SPR18/250 Page 2 March 2, 2018 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. The District's petition In its February 22, 2018 petition the District asks this office to allow it to charge in excess of $25.00 per hour up to its municipal hourly rate of $220.00 per hour to review responsive records for privileged information. The District references a court case involving Mr. Martin and the District and explains "[a]n attorney at this firm is the only person with the requisite knowledge to review the bills and determine what.information is privileged and/or is otherwise exempt from disclosure." You further note "[i]t is a particularly critical task given that Mr. Martin is the Plaintiff in the pending Superior Court litigation seeking the bills." You also estimate that "this task will take about three (3) hours to complete, including the preparation of the required privilege log." I find the District 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 by assessing a fee in excess of$25.00 per hour. See G. L. c. 66, § 10(d)(iv); SPR18/176 Determination ofthe Supervisor ofRecords (February 22, 2018). However, I decline to approve the District's request for $220.00 per hour. Instead, in light of the factors in G. L. c. 66, § 10(d)(iv), I find the District may assess a fee of$75.00 per hour for attorney review. The District 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 District. Conclusion For the reasons described above, I will allow the District to charge for segregation fees in excess of $25 per hour for the provision of the requested records. However, this allowance is limited to the rate of$75.00 per hour. The District must provide the records in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, the requestor 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), 10A(c). Sincerely, ~ ........... ....., ......... Rebecca S. Murray Supervisor of Records cc: Michael Martin