Rob Fasulo v. Wilmington, Town of - Town Clerk (SPR 20191011)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 29, 2019 SPR19/1011 Christine R. Touma-Conway Office of Town Clerk Town 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 for 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 May 15, 2019, Rob Fasulo requested "Town of Wilmington departmental emails and any applications received by the Town of Wilmington since January 31, 2019 relative to a property known as the Olin site." 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, § lO(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, § IO(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, § 10(d )(iv). The second prong of the test is whether the fee represents an actual and good faith 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

Christine R. Touma-Conway SPR19/1011 Page2 May 29, 2019 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. C. 66, § lO(d)(iv). Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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, § 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. 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 In its May 21, 2019, petition the Town requests a "waiver of the statutory limits to fees for segregation and redaction with the Supervisor pursuant to 950 CMR Section 32.06(4)(g) and(h) for the approximately 12 hours I am estimating for me to review emails and segregate and/or redact those which might contain attorney/client privileged information." The Town indicates the request "is the subject of EPA cleanup and a possible warehousing operation." The Town explains "this current request entails 614 emails. The review of these emails will necessarily require that each must be opened and its contents as well as any attachments thereto reviewed, in order to ascertain whether they might be covered by some exemption to disclosure, or, more importantly, the attorney/client privilege; such contents are not easily identifiable without a thorough review. Based upon the amount of emails from the last request and the amount of time it took to complete the request, we have estimated that the per email review rate based on the first request and its fulfillment was .0 4 hour per email."

Christine R. Touma-Conway SPR19/1011 Page 3 May 29, 2019 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 or segregation. See G. L. c. 66, § lO(d)(iv). However, with respect 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. When preparing a fee estimate for the provision of the requested records the Town is 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 Mr. Fasulo within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Fasulo 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, § 1 OA. Sincerely, Rebecca S. Murray Supervisor of Records cc: Rob Fasulo