Janice Sawyer v. Wilmington, Town of - Town Clerk (SPR 20190706)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 10, 2019 SPR19/0706 Christine R. Touma-Conway Office of Town Clerk Tovm of Wilmington 121 Glen Road Wilmington, MA 01887 Dear Ms. Touma-Conway: I have received your petition on behalf of the Town of Wilmington (Town) requesting permission a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § lO(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § lO(c). On March 26, 2019, Janice Sawyer submitted two separate requests pertaining to "correspondence and attachments relative to communications between town officials and the ownership of a proposed detox facility for two separate purposes ... " 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, § 10(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, § lO(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). One Ashburton Place, Room 1719, Boston, Massaehusetts 02108 • (617) 727 2832• F~: (617) 727 5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Christine R. Touma-Conway SPR19/0706 Page2 April 10, 2019 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) 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § lO(d)(iv). Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must ----------L:ef1ecLthe actual cast af complying with a particular request Td A maximum fee~~o_f~fi~v~e~c~e~n=ts~----- ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(d)(i). 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. Td. 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, § lO(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 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition Tn its April 3, 2019 petition the Town requests "a waiver of statutory limits to fees for segregation and redaction pursuant to 950 CMR Section 32.06(4)(g) and (h) for approximately 3 hours Tam estimating per request for me to review emails and segregate and/or redact those which might contain attorney/client privilege." The Town explains "[t]he search for these documents will necessarily require a thorough search of emails between and among the town officials and the proponents of this project, a controversial proposal that has garnered extensive public outcry and kept this office busy at time almost exclusively responding to requests for information ... The necessity for email by email review is that Attorney/Client privileged material is included in these emails, whose contents are not easily identifiable without said review." T find the Town has met its burden to explain how, given the nature of the responsive

Christine R. Touma-Conway SPR19/0706 Page 3 April 10, 2019 records, the request could not prudently be completed without redaction, segregation. See G. L. c. 66, § 10(d )(iv}. However, for a waiver of statutory limits to fees for segregation and redaction the Town must provide more information when preparing their fee estimate. G. L. c. 66, § lO(d)(iv). Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Town is permitted to charge for time spent segregating and redacting the requested records. ---------------"'V---/hl--He-n+-p-r-e-paring a fee estimate for the provision of the requested records ~1--H'n-i-s------ advised to provide a detailed explanation to the requestor detailing why this amount of time is necessary. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). The Town must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The Town shall provide a response to Ms. Sawyer within five business days ofreceipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Sawyer may appeal the Town's fee estimate 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, § 1O A. Sincerely, Rebecca S. Murray Supervisor of Records cc: Janice Sawyer