Robert Otto v. Littleton, Town of - Office of the Town Clerk (SPR 20192315)

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

Rebecca S, Murray Supervisor of Records

November 21, 2019 SPR19/2315

Ivria Glass Fried

Miyares and Harrington LLP Town of Littletown

40 Grove Street, Suite 190 Wellesley, MA 02482

“Dear Attorney Fried:

I have received your petition on behalf of the Town of Littletown (Town) 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 Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). Specifically, on November 12, 2019, Robert Otto submitted a modified request for “any and all communication since the approval from the May 2018 town meeting... regarding the Whitcomb Ave Water Treatment Plant, but excluding any emails sent or received by Legal Counsel and exclusing any emails sent or received by Mr. Otto or his Legal counsel.”

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.M.R. 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.

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.

Ivria Glass Fried, Esq. | SPR19/2315 Page 2 November 21, 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.MLR. 32.06(4)(g).

Current Petition

In its November 15, 2019 petition, the Town requests “authorization to charge, at a rate of $40.23 per hour, for time spent to segregate and redact emails responsive to Robert Otto’s modified request.” The Town indicates they have identified potentially responsive records that . includes: approximately 506 documents, approximately 3,300 emails, and approximately 34 potentially responsive non-email records.

The Town explains “[m]any 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 subject to the attorney-client privilege.” The Town states “in light of the ongoing litigation and pending oral

Ivria Glass Fried, Esq. SPR19/2315 Page 3 November 21, 2019

arguments, legal counsel for the Town has advised the Town that it would be prudent to withhold all otherwise responsive e-mails that are exempt from the definition of ‘public record.’” The Town indicates it “is willing to assess the hourly rate of Diane Crory, Town Clerk.”

The Town states “[a]n associate attorney in Town Counsel’s office is the lowest paid employee with the requisite knowledge for reviewing documents for the deliberative process — exemption...[r]ather than requesting to assess fees at $175.00 per hour...the Town is willing to assess the fees of Ms. Crory...[s]he makes an hourly rate of $40.23.”

The Town estimates “it will take on average on minute per email (506 plus 3,300 for a total of 3,806 ). If approved, the total amount of time the Town will assess is $63.40 hours. At $40.23 per hour, the fee estimate will be $2,550.58.”

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 Town 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). Therefore, the Town may charge a fee of $40.23 per hour for segregation and redaction.

This office encourages the requestor and the Town 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 Town’s petition, I find the Town 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 Town may assess a charge for the segregation and redaction of such exempt material. Any fee estimate provided by the Town must be in compliance with the Public Records Law and its Regulations.

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), L0A(c).

Sincerely,

Rebecca S, a Mua

ray Supervisor of Records ce: Robert Otto