Carol-Ann Ricardo v. Braintree, Town of - Town Solicitor (SPR 20191159)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 24, 2019 SPR19/1159 Nicole I. Taub, Esq. Town Solicitor Town of Braintree One JFK Memorial Drive Braintree, MA 02184 Dear Attorney Taub: I have received the petition of Carol Ann Ricardo appealing the response of the Town of Braintree (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Ricardo requested a copy of documents relating to the construction, planning and design of the project as maintained by the Planning and Community Development Department and correspondence between 18 identified individuals and entities. The Town originally provided Ms. Ricardo with a fee estimate of $2,134.00. I note that Ms. Ricardo did not provide this office with a copy of her original request, nor the Town's initial fee estimate. Ms. Ricardo is advised that the requirements for an appeal are as follows: such appeal shall be in writing, and shall include a copy of the letter by which the request was made and a copy of the letter by which the custodian responded. See 950 C.M.R. 32.08(1)(g). Modification ofr equest In a May 16, 2019 communication, Ms. Ricardo modified her request: "[g]oing forward I would like a new estimate that includes the following documentation; 1. The 1,300 pages of correspondence, minus the privileged information. I no longer need the 8,500 pages from the Planning Department. 2. Copies of the Peterson Fund bank statements from January 2013-January 2019." Additionally, Ms. Ricardo states, "I have narrowed the [Public Records] request significantly." 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

Nicole I. Taub, Esq. SPR19/1159 Page 2 June 24, 2019 The Town provided Ms. Ricardo with a fee estimate for her May 16th revised request on June 7, 2019. After Ms. Ricardo's modification to eliminate the request for 8,500 pages of records from the Planning Board, the Town's total cost associated with production of the correspondence of 18 identified individuals and entities, and six ( 6) years of bank statements is $1,872.25. As a result of the $1,872.25 estimate, Ms. Ricardo petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Fee estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has a population of 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). The Town's responses In its June 7, 2019 response, the Town indicates it is, " ... in receipt of [Ms. Ricardo's] revised request for information relating to the construction, planning, design, financing, ground breaking or agreements concerning the Braintree Sports Complex, Petersen Pool, Ice Rinks or formerly used names or acronyms for the same from January 1, 2015 to Present, excluding the documentation maintained by the Planning Department." The Town's June ih estimate is for Ms. Ricardo's revised request for all correspondence to, from or between 18 identified individuals and 5 private entities, and for copies of the Petersen Fund bank statements from January 2013 to January 2019. You explained, " ... a search of the Town's email system using the search terms 'Braintree Sports Complex' and 'Petersen Pool' in

Nicole I. Taub, Esq. SPRI9/1159 Page 3 June 24, 2019 conjunction with the individuals identified ... returned approximately one thousand three hundred and fifteen (1,315) results, most of which are comprised of multiple pages." With regard to the emails, the Town asserts, "[s]everal of the individuals identified in your request have served the Town in the capacity of Town Solicitor (i.e., Peter Morin, Lisa Maki and myself). As a result, all correspondence requested must be reviewed in order to identify the privileged information and prevent the production of information protected by [Exemption (a)] .... " The Town's estimate waived the first two hours of search time in its calculation of the costs associated with Ms. Ricardo's request. The estimate also states, "[t]he estimate was created based on an average of three (3) pages per email, plus the cost of search, segregation, review and redaction requested as detailed above. This estimate also includes the time required to complete the search for the requested bank statements, which exist in paper form." I find that the Town's ih June estimate did not contain the level of detail necessary; such as a breakdown of the time necessary for each of the tasks. ih A Public Records Division staff attorney discussed this appeal and the Town's June fee estimate with you. On June 12, 2019, you provided this office with further information to explain the Town's estimate for Ms. Ricardo's May 16th revised request. Regarding the email correspondence, the Town estimates, "[bJ ased on a low average of approximately 3 pages per email ( also noteworthy is the likelihood of several attachments that were not factored into this total), the cost estimate was based on 4,000 pages requiring segregation, review and redaction." The Town did not explain whether it is charging for the cost of searching and compiling the emails. I find that it must clarify this issue. Whereas the emails contain information protected by the attorney-client privilege, you explained that as the Town's Solicitor, you are the only person who is capable of segregating and redacting these records. See G. L. c. 66, § IO(d)(iii); 950 C.M.R. 32.06(4). Therefore, as your hourly rate is more than $25 per hour, the Town has assessed $25 per hour as the lowest paid hourly rate to segregate and redact privileged material. You informed this office that in your experience you are able to review (segregate) and redact 60 pages per hour, which breaks down to 1 minute per page to segregate and redact privilege information from the emails. ih While the Town's June response did not indicate how many bank statements it possesses that are responsive to Ms. Ricardo's request, you explained in your June 12th email to this office that the Town has 6 years of bank statements in paper format only. The bank statements are provided to the Town on a monthly based; therefore, you estimate that there are a total of 217 statements. It is my understanding that the Town will need to conduct a hand search by the Town Treasurer in order to locate and compile the bank statements. Further, the bank statements contain confidential data, such as banking account numbers which The Town contends must be redacted. The Town is also charging for photocopies of the banking statements at a cost of$. 05 per page. G. L. c. 66, § 10(d )(i).

Nicole I. Taub, Esq. SPR19/1159 Page 4 June 24, 2019 The Town has not indicated the amount of time necessary to conduct the search and compilation of the bank statements; nor, has the Town explained why the Town Treasurer is required to conduct the search. I find that the Town must explain why a lower paid employee in the Treasurer's Office cannot conduct the search and compilation, rather than the Town's Treasurer. The Town is advised that the $25 hourly rate is the maximum allowed by the Public Records Law, and it must use the lowest paid hourly rate of the employee capable of conducting the search and compilation. See G. L. c. 66, § 10(d )(iii) The Town may suggest a reasonable modification of the scope of the request or offer to assist Ms. Ricardo to further modify the scope of the request if doing so would enable the Town to produce records sought more efficiently and affordably. I encourage the parties to communicate and work together to satisfy Ms. Ricardo's request. I find that the Town has not met its burden in responding to the request, and must provide Ms. Ricardo with a further response to her request that addresses the issues raised in this determination. Conclusion Accordingly, the Town is ordered to provide Ms. Ricardo with a response to clarify its estimate, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Carol Ann Ricardo