Robert Otto v. Littleton, Town of - Office of the Town Clerk (SPR 20192173)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen•isor of Records November 7, 2019 SPR19/2173 Diane Crary Town Clerk-Records Access Officer Town of Littleton 37 Shattuck Street, 2nd Floor Littleton, MA O1 460 Dear Ms. Crary: I have received the petition of Robeti. Otto appealing the response of the Town of Littleton (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on October 8, 2019, Mr. Otto requested records relating to the Whitcomb Ave Water Treatment Plant (Plant) project. Prior determination - fee petition (segregation and redaction; hourly rate) The fee estimate provided by the Town for the provision of responsive records was the subject of a prior petition from the Town. See SPR19/2 l l l Determination of the Supervisor of Records (Supervisor) (October 22, 2019). In my October 22nd determination, based on the information provided in the Town's petition regarding the type of responsive records and the extent to which these records may contain exempt material, I found that the Town had met its burden to assess an hourly rate of $75 per hour. On October 23, 2019, the Town provided Mr. Otto with an estimate of $13,125.00 to provide electronic records, plus any fees incurred to provide paper copies that may not be available in electronic form. As a result of the estimate for $13,125.00, Mr. Otto petitioned this office and this appeal was opened. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost .of complying with a particular request. Id. A maximum fee of five cents ($.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). 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

Diane Crory SPR19/2173 Page 2 November 7, 2019 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 pa1i 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). The Town's fee estimate In its October 23rd fee estimate, the Town indicates that it performed a search of its records and identified the following results: • Littleton Water Department-emails: approximately 3,200 documents; • Town of Littleton (non-Water Department) - emails: approximately 6,600 documents; • Littleton Water Depaiiment - non-email potentially responsive records; 71 O; • Town of Littleton (non-Water Department): o Conservation Commission: 2 inch file and a few sets of rolled plans o Planning Board: 6 Yz inch file. The Town indicates that the email records will be segregated and redacted as necessary for exempt material under Exemption (d ), the attorney work product privilege, the attorney-client privilege, and any additional exemptions discovered in the segregation and redaction of the responsive records. The Town estimated that it will take 3 minutes or more per email; however, the Town states that it has elected to only assess a fee of 1 minute per email. It is my understanding that the Town is involved in active litigation and pending oral arguments, and that the Town's Legal Counsel advised the Town that the review, segregation and redaction of the emails is best performed by an attorney. See Robert Otto et al. vs. Mark Montanari As member of the Planning Board for the Town of Littleton et. al., (Docket No. cvo 1981 1141 ). Your October estimate states, "[a]n associate in Town Counsel's office is the lowest paid employee with the requisite knowledge for reviewing documents for attorney-client privilege. After a legal assistant completes any initial searches and segregation that do not require legal judgment, an attorney will perform the review, segregation and redactions necessary for producing the requested documents." The Town is charging $75 per hour to perform the review

Diane Crory SPR19/2173 Page 3 November 7, 2019 and redaction. I note that due to the privileged nature of some of the records that are the subject oflitigation, I approved the Town's hourly rate of $75 in my October 22nd determination. See G. L. 66, § IO(d)(iii); 950 C.M.R. 32.06(4). You indicated, "[m]ost, if not all, of the records in the Planning Board's file are available online ... However, if Mr. Otto seeks a hard copy of the file, he may schedule an appointment with the Town Planner." The Town asserted, in lieu ofreviewing the file, the Town can provide Mr. Otto with paper copies at a cost of 5 cents per page. G. L. c. 66, 10( d)(i). Mr. Otto was also advised the records of the Conservation Commission's file are readily available in electronic format; therefore, the Town will provide those records via email. Modifications offered to Mr. Otto to reduce costs The Town informed Mr. Otto that it is committed to working with him to obtain the documents he seeks, while reducing the cost of production. In its October 23rd estimate, the Town offers the following modifications: • Exclude all emails sent or received by [L]egal [C]ounsel; • Exclude any emails sent or received by [Mr. Otto] or [Mr. Otto's] Legal Counsel; • Narrow the request to include only emails sent or received by a particular employee(s), the Town would still need to review to determine whether Exemption ( d) applies; • Narrow the scope of the request. "For example, you could limit the request to those documents that discuss Article 97 or a particular aspect of the project, like landscaping or paving;" and • Incorporating additional terms into the email search would assist in reducing the number of potentially responsive records. Finally, you asked Mr. Otto to advise you on how he wished to proceed and whether he would be willing to modify his request. After this appeal was opened, a Senior Attorney in the Public Records Division spoke with Mr. Otto about the possibility of modifying the request to reduce the costs. It is my understanding that Mr. Otto informed this office that he is most interested in any emails or records that discuss a change of site location for the Plant, and any records that would reveal the justification for changing the site location for the Plant. It is unclear whether the costs for producing records can be reduced by Mr. Otto's suggestion of focusing on records that discuss a change of site and the justification for changing the site of the Plant. It is also unclear whether Mr. Otto has contacted the Town directly to modify his request by taking advantage of any of the suggestions made by the Town to reduce the cost of producing the requested records. I encourage the parties to continue to communicate in order to try to modify the request to reduce the total cost. Although the Town's response describes the reasonableness of its fee estimate that involves a voluminous amount of records that will be required to be reviewed, segregated and

Diane Crory SPR19/2173 Page 4. November 7, 2019 redacted at one (1) minute of time per email, I find the Town must provide a response concerning Mr. Otto's suggested modification communicated to this office. Conclusion Accordingly, the Town is to provide Mr. Otto with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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, ~ I T ~ Supervisor of Records cc: Robert Otto