Brooks A. Ames v. Brookline, Town of - Town Clerk (SPR 20180630)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 11,2018 SPRlS/630 Patrick J. Ward Town of Brookline 333 Washington Street, Room 208 Boston, MA 02445 Dear Mr. Ward: I have received your petition on behalf of the Town of Brookline (Town) seeking to charge a fee in excess of $25 an hour. G. L. c. 66, § 10 ( d)(iv). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv)(2). On May 3, 2018, Brooks Ames requested "all communications between the Town and the claimants concerning the settlement agreements." 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, § 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. 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, § 1 0(d )(iii); 950 C.M.R. 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, § 10(d)(iv). 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 J. Ward SPR18/630 Page 2 May 10,2018 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. The Town's Petition In its May 4, 2018 petition the Town "seeks the approval of the SPR to charge a fee of $53.66 per hour to search for, segregate, and redact the requested records." The Town indicates the amount represents the rate of pay ofthe lowest paid attorney in the Town's Legal Department. The Town explains in regard to the requested communications for the 9 settlement agreements "[i]n some of these matters, the Town was represented by outside counsel." The Town estimates "[a] search for these records is estimated to take at least nine (9) hours, based on an estimate of one hour per claim." 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 by assessing a fee in excess of$25.00 per hour. See G. L. c. 66, § 10(d)(iv). However, the Town has not met its burden to charge for 9 hours of search time at the rate of$53.66. G. L. c. 66, § 10 (d )(iii). The Town needs to clarify in its subsequent fee estimate how much time will be spent on searching, segregating, and redacting. Conclusion As discussed above, I will allow the Town to charge for segregation fees in excess of $25 per hour for the provision of the requested records. However, this approval is limited to the rate of $53.66 per hour and only for segregation and redaction costs. The Town 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: Brooks Ames