Thomas Harrington v. Littleton Electric Light and Water Departments (SPR 20192111)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

October 22, 2019 SPR19/2111

Thomas J. Harrington Miyares and Harrington LLP Littletown Water Department 40 Grove Street, Suite 190 Wellesley, MA 02482

Dear Attorney Harrington:

I have received your petition on behalf of the Littletown Water Department (Department) requesting permission to charge for time spent segregating or redacting responsive records as well as to charge an hourly rate over $25. G. L. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). Specifically, on October 8, 2019, Robert Otto requested “any and all communication since the

approval from the May 2018 town meeting... regarding the Whitcomb Ave Water Treatment Plant project.”

Petition to Assess Fees

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 (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.MLR. 32.06(4).

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. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made fora .- commercial purpose.

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

Thomas J. Harrington, Esq. SPR19/2111 Page 2 October 22, 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; 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, Id.

Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records, 950 C.M.R. 32.06(4)(g).

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, § 10(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, § 10(d)(iv). See G. L. c. 66, § 10(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 October 15" petition, the Department requests “authorization to charge, at a rate of $115.00 per hour, for discounted time spent by an associate attorney in my office to: (1) segregate and redact emails and (2) prepare a log of any emails withheld on the basis of attorney- client privilege...” The Department indicates “[t]he Town performed a search of its records, with the following results:... approximately 3,200 internal emails, approximately 6,600 external emails, 710 potentially responsive non-email internal records, and non-email external records responsive to the request need to be determined.”

The Department explains “[m]Jany of these records likely fall under the deliberative process exemption from the definition of ‘public record’ under M.G.L. c.4, §7(26)(d) or are

Thomas J. Harrington, Esq. SPR19/2111 Page 3 October 22, 2019

subject to the attorney-client privilege.” The Department further explains “legal counsel has been heavily involved in both the permitting of the facility and the subsequent litigation.” The Department states “Town Counsel has advised the Town that review, segregation, and redaction of emails should be done by an attorney, as determination of the applicability of the work product doctrine and/or attorney client privilege is a legal judgment...”

The Department indicates “[a]n associate attorney in Town Counsel’s office is the lowest paid employee with the requisite knowledge for reviewing documents for attorney-client privilege” and “[rJather than requesting to assess fees at $175.00 per hour...the Town requests permission to charge $115.00 per hour..” The Department estimates “it will take on average one minute per email” and “the amount of time the Town will assess is 175 hours” meaning “the fee estimate will be $20,125.” The Department notes “[t]he Town will work with Mr. Otto to determine whether the request can be narrowed...to minimize the need for attorney review and thus minimize the fee.”

Based on the information provided in its petition regarding the type of responsive records and the extent to which these records may contain exempt material, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). However, this allowance is limited to the rate of $75 per hour.

This office encourages the requestor and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably).

Conclusion

In light of the Department’s petition, I find the Department has met its burden to explain how the request could not have been prudently completed without the redaction, segregation and fee in excess of $25 per hour. To the extent the responsive records contain the exempt information as described above, the Department may assess a charge for the segregation and redaction of such exempt material.

When preparing any revised fee estimate for the provision of the requested records the Department is advised to provide a detailed explanation to the requestor detailing why this amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable), Mr. Otto may appeal the Department’s response within ninety days. See 950 C.MLR. 32.08(1).

Thomas J. Harrington, Esq. . SPR19/2111 _ Page 4 October 22, 2019

Please note, Mr. Otto 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, § 10(d)(iv)(4) 10A(c),

2

Ds boren

Rebecca S, Kabecea

Supervisor of Records

cc: Robert Otto