Daniel Goldberg, Esq. v. Brookline, Town of - Town Clerk (SPR 20181552)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 25, 2018 SPR18/1552 Patrick J. Ward, Esq. Town Clerk Town of Brookline 3 3 3 Washington Street, Room 104 Brookline, MA 02445 Dear Attorney Ward: I have received your petition on behalf of the Town of Brookline (Town) for an extension of time to produce records and to charge for time spent segregating or redacting public records in responding to a request made by Attorney Daniel Goldberg. G. L. c. 66, § lO(c); G. L. c. 66, § lO(d)(iv). As required by law, the Town provided a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv)(2). On October 4, 2018 Attorney Goldberg requested seven categories ofrecords related to the "Baldwin North site" for a time period "from and after January 1, 2017." The requested records pertain to requests for legal advice, opinions of Town Counsel, and notes related to such opinions. Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a se_ries of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and 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, Esq. SPR18/1552 Page2 October 25, 2018 (vi) the public interest served by expeditious disclosure. G. L. c. 66, § IO(c). The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Extension oft ime to produce responsive records In its October 19, 2018 petition the Town requests "an extension oftirne of 30 business days from the date of this petition to respond to the request." You assert that "[t]he scope of the request, the volume of the potentially responsive materials and the need to segregate and log exempt material means that an appropriate response will require significantly more time than is provided for by G.L. c. 66." You also note that "much of the Town's legal resources in the corning weeks will need to be dedicated to the Special Town Meeting scheduled for November 13, 2018." Attorney Jonathan Simpson in the Office of the Town Counsel informed a Public Records Division staff attorney that the Town is currently compiling records responsive to a previous request from Attorney Goldberg's colleague, Attorney Stephen Wald. I find that in light of the volume of responsive records, the actions required of the Town to respond to the current and previous requests and the efforts undertaken to do so, along with the capacity to produce the request, the Town has established good cause to permit an extension of time. G. L. c. 66, § IO(c)(i), (iii), (iv). I hereby grant the Town an extension of 10 business days beyond the time allowed in G. L. c. 66, § lO(b)(vi) (a municipality may provide a tirnefrarne not to exceed 25 business days to produce responsive records). To the extent possible, the Town must provide responsive records on a rolling basis. Petitions for ability to assess fees 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. Municipalities may not assess a fee for the first 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, § IO(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, § IO(d)(iv).

Patrick J. Ward, Esq. SPR18/1552 Page 3 October 25, 2018 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 C.M.R. 32.06(4). With respect to its petition to assess fees the Town explains "as the request seeks legal advice and opinions, the responsive materials will include records that fall into one of the applicable exemptions to the definition of 'public records' found in G.L. c.4, §7, clause twenty sixth, including, but not limited to, being subject to the attorney-client privilege or the deliberative process exemption." You note that the Town "will need to expend time and resources segregating those materials from the non-exempt records and preparing a log of withheld records" and that the Town "believes it should be allowed to charge for time spent segregating and redacting these records, and requests approval of the Supervisor to do so pursuant to G.L. c. 66, § lO(d)(iv) and 950 CMR 32.06(4)(g) and (h)." The Town also seeks permission to charge in excess of $25 per hour for the time spent segregating and/or redacting. Specifically, the Town indicates "because much of the work necessary to respond to this request must be performed by an attorney familiar with the proper application of the protections for privileged material - either within the Office of Town Counsel or, in certain limited circumstances, by an attorney in the office of the outside law firm retained by the Town as Special Counsel - the Town requests permission pursuant to G.L. c. 66, §lO(d)(iv) and 950 CMR 32.06(4)(g) and (h) to charge a fee in excess of $25/hour for the time spent responding to this request." I understand the Town provided Attorney Goldberg a fee estimate for the production of records that includes hourly rates of $55.00 per hour for an attorney in the Office of the Town Counsel, $26.00 per hour for a paralegal in the Office of the Town Counsel, $200.00 per hour for "Special Counsel," and $45.58 per hour for "IT - Email search and Restore." The Town estimates it will take a total of 46 hours to produce the records and it is not assessing a fee for the first two hours spent responding to the request. Given that the responsive records include attorney-client privilege materials, 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, § lO(d)(iv); SPR18/176 Determination of the Supervisor of Records (February 22, 2018). The Town has also demonstrated that the fees are not being levied to limit, deter, or prevent access to records. Therefore, the Town may assess a fee for the time spent to segregate and redact the requested records. In light of the factors in G. L. c. 66, § lO(d)(iv), I find the Town may assess a fee of $55.00 per hour only for attorney review to redact attorney-client privileged material. However, the Town has not demonstrated the need for 46 hours to produce the records. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable).

Patrick J. Ward, Esq. SPR18/1552 Page 4 October 25, 2018 Conclusion Accordingly, the Town is granted an extension of time to produce responsive records in the manner described above. The records must be provided in a manner consistent with this determination, the Public Records Law and its Regulations. Further, for the reasons described above, I will allow the Town to charge for the time spent segregating and/or redacting responsive records. The Town may also assess an hourly rate of $55.00 per hour only for attorney review to redact attorney-client privileged material. However, the Town must explain why it 46 hours is needed to produce responsive records. Attorney Goldberg may appeal the substantive nature of the Town's response within ninety days. See 950 C.M.R. 32.08(1). 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), 10( c ), 1O A( c ). Sincerely, Rebecca S. Murray Supervisor of Records cc: Daniel L. Goldberg, Esq.