Ethan Sawyer v. Wilmington Town Clerk (SPR 20191123)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 11, 2019 SPR19/1123 Christine R. Touma-Conway Office of Town Clerk Town of Wilmington 121 Glen Road Wilmington, MA O1 887 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 a request. 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(d)(iv). On May 29, 2019, Ethan Sawyer requested" ... any public records information available regarding emails to and/or from Town Employees (including unpaid Board members) that were sent or received from April 30th, 2019 through May 28th, 2019 and the content/subject of the emails pertained to the Olin superfund site located at 51 Eames Street. Please exclude from this request any emails sent to Town Counsel, also please exclude from this request any emails received from Town Counsel." 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 Supenrisor 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, § 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 SPR19/1123 Page2 June 11, 2019 10(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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. C. 66, § 10( d)(iv). Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(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. 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 June 4, 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 9 hours I am estimating for me to review emails and segregate and/or redact those which might contain attorney/client privileged information or to which other exemptions to disclosure might apply." The Town indicates the requested records pertain to a property that is the subject of EPA superfund cleanup. You explain that "I did ask the IT Department if it could specifically exclude any emails to or from Town Counsel, in order to limit the number of emails involved. Due to technical limitations, the only emails that could be definitively excluded from the search are those sent

Christine R. Touma-Conway SPR19/1123 Page 3 June 11, 2019 from particular addresses. Thus, any email sent from Town Counsel's email address can be excluded from those returned in a search, but emails to Town Counsel, or otherwise embedded within a string of emails between town officials, cannot be excluded as part of the original search." You further note that " ... despite the requestor' s attempt to limit the scope of his request, the only way to definitively exclude emails which include Town Counsel communications is to open each and review its contents as well as any attachments thereto in order to ascertain whether they might be covered by some exemption to disclosure or the attorney/client privilege. These contents would not be easily identifiable without a thorough review." The Town indicates" ... this current request. .. entails 452 emails. Because I have performed similar reviews of emails in past requests, I am comfortable estimating the per email review time for each email to be .02 hour. This extrapolates to a total of approximately 9 hours to review, segregate and/or redact the current material." 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 its fee estimate. G. L. c. 66, § I 0(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. Sawyer within five business days ofreceipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. 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 I, c 66, § 1Q (d)(iv)(4), IOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ethan Sawyer