Louis Petrozzi v. Hopkinton, Town of -- Department of Public Works (SPR 20190735)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 12, 2019 SPR19/0735 Rebekah Lacey, Esq. Miyares and Harrington LLP Town of Hopkinton 40 Grove Street • Suite 190 Wellesley, MA 02482 Dear Attorney Lacey: I have received your petition on behalf of the Town of Hopkinton (Town) seeking a waiver of statutory limits on fees in responding to a request made by Louis Petrozzi of the Wall Street Development Corp. G. L. c. 66, § lO(d)(iv). As required by law, the Town furnished a copy of its petition to the requestor. Id. On March 25, 2019, Mr. Petrozzi requested six categories ofrecords pertaining to "Leonard Street." Petitions to assess 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, § 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 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; 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

Rebekah Lacey, Esq. SPR19/0735 Page 2 April 12, 2019 and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Current Petition In its April 5, 2019 petition, the Town requests "a waiver of statutory limits on fees for responding to public records ... (at a rate of $155.00 per hours) for actual time spent (up to a cap of 40 hours) by an attorney in my office (1) segregating and redacting e-mails and (2) preparing a log of any e-mails withheld on the basis of attorney-client privilege." The Town explains "[m]any of these emails likely fall under the deliberative process exemption from the definition of 'public record' under M.G.L c. 4 ,§7(26)(d), or are subject to attorney client privilege ... [e ] mail communications among Town staff regarding the threatened litigation and associated issues are likely to constitute 'work product' and thus fall under the deliberative process exemption ... [e ]-mails between Town staff or board member and Town Counsel on any topic are likely subject to attorney client privilege." The Town states "[a]n associate attorney in Town counsel is the lowest paid employee with the requisite knowledge for reviewing documents for attorney-client privilege ... [r]ather than requesting to assess fees at the actual rate the Town will be charged for an associate, however, Mr. Westerling requests permission to charge $115.00 dollars per hour, which is the hourly rate that my firm charges the Town of Hopkinton for services in our paralegal office." The Town "proposes to cap the time charged for at 40 hours, even if more time than that is actually required ... [t]hus the maximum fee that Mr. Westerling seeks authorization to impose is $4,600.00." The Town also states "[t]he public records request is for a commercial purpose. It was submitted by a development company that is seeking to develop a four-unit subdivision on a parcel adjacent to Leonard Street; the request is clearly intended to 'advance the requester's strategic business interests in a manner that the requester can reasonable expect a profit.' 950 CMR 32.02." The term "commercial purpose" as used in this section shall mean: the sale or resale of any portion of the public record or the use of information from the public record to advance the requester's strategic business interests in a manner that the requester can reasonably expect to make a profit, and shall not include gathering or reporting news or gathering information to promote citizen oversight or further the understanding of the operation or activities of government or for academic, scientific, journalistic or public research or education. G. L. c. 66, § 10(d )(ix). Based on the Town's April 4th petition and the correspondence provided, it is my understanding that the requests made by the Wall Street Development Corp meet the statutory

Rebekah Lacey, Esq. SPR19/0735 Page 3 April 12,2019 definition of "commercial purpose" within the Public Records Law. See G. L. c. 66, § 10(d )(ix); see also SPR18/I318 Determination of the Supervisor of Records (September 5, 2018). Conclusion Based on the Town's petition and my finding that the requests are for a commercial purpose, I approve the Town's petition to charge more than $25 an hour to produce the responsive documents. Please be advised, 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. See G. L. c. 66, § 10(d )(iii). 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, § lOA(c). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Louis Petrozzi Christopher G. Timson, Esq.