Elizabeth Garthe v. Marblehead, Town of (SPR 20192198)

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

Rebecca S. Murray Supervisor of Records

October 31, 2019 SPR19/2198

Maurica D. Miller

Mead, Talerman & Costa, LLC 30 Green Street

Newburyport, MA 01950

Dear Attorney Miller:

I have received your petition on behalf of the Town of Marblehead (Town) requesting permission to charge for time spent segregating or redacting responsive records under G, L. 66, § 10(d)(iv) as well as to charge an hourly rate over $25. As required by law, the Town furnished a copy of this petition to the requestor. G, L. c. 66, § 10(c). On October 18, 2019 the Town received a request for records from Nicholas Mango and Elizabeth Garthe for the following records:

1. Copies of all billing invoices, exactly as submitted to the Town, by all individuals and/or firms acting as legal counsel or providing legal services to the Town or its agents, for the period between April 1, 2015 and October 18, 2019. We request copies of the original invoices as paid by the Town for all tasks and matters. A summary of the invoice amounts is not responsive to this request; we are specifically requesting copies of all the original invoices.

2. Copies of the record of each payment made to all the individuals and/or firms acting as legal counsel to the Town its agents, for the period between April 1, 2015 and October 18, 2019 inclusive whether related to the above invoices or not. Images of the checks (front sides), or the transaction data for electronic transfers are acceptable for the payment materials. The payment materials should include documentation showing who approved or authorized each payment if such authorization is not part of the payment itself. If whole groups of payments were authorized by one individual, then it is acceptable to submit that authorization once and indicate to which group of payments it applies.

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

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

Maurica D. Miller SPR19/2198 Page 2 October 31, 2019

(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 for a commercial purpose. ) .

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. ¢. 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 ofa public record. G. L. c. 66, § 10(d)@).

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)(iy).

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)(v). See G. L. c. 66, § 10(d)(iii); 950 C.MLR. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after

Maurica D, Miller SPR19/2198 Page 3 . October 31, 2019

receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition

In its petition dated October 30", the “Town hereby petitions for a waiver of the statutory limit of $25 per hour assessed to segregate and/ or redact public records.” The Town articulates that these invoices and checks alike contain opinions and advice that are exempt from disclosure under the attorney-client privilege. Additionally, the Town further asserts that due to the legal wording on these invoices it is important that an attorney preform the review and redactions.

With respect to the hourly attorney rate of $210.00 per hour, you explain that this is “the rate the Town pays for its legal services, as it relates to the redacting of legal invoices.” It should be noted that the Public Records Regulations require that the person with the lowest hourly rate capable of compiling, segregating, and redacting the requested records preform the redaction.

Conclusion

I find the Town has demonstrated the request could not be prudently completed without redaction or segregation. Consequently, the Town may assess a fee for the time spent to compile, segregate, and redact the requested records. Further, the Town may charge for the time spent to segregate responsive records in excess of $25 per hour for the provision of the requested records. However, this allowance is limited to the rate of $75.00 per hour.

I find the Town must provide a fee estimate outlining the number of hours that are needed to produce the records. Specifically, it must describe how much time will be needed to locate, compile, review and redact the responsive records.

Please note, Nicholas Mango and Elizabeth Garthe have 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).

econ

felhecca S. Murray Supervisor of Records

ec: Nicholas Mango & Elizabeth Garthe