Gordon C. Andrews v. Halifax, Town of (SPR 20192461)

The Co.mmonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 18, 2019 SPR19/2461 Charlie Seelig Town Administrator Town of Halifiax 499 Plymouth Street Halifax, MA 02338 Dear Mr. Seelig: 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. G. L. 66, § lO(d)(iv). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § lO(d)(iv). Specifically, on December 10, 2019, Gordon Andrews submitted a request for "any and all communications between land-use counsel K&P, zoning board of appeals, building inspector/zoning enforcement officer, building inspector assistant, planning board, and your own as town administrator, and any other parties with regards to petition 910 and site pland before the planning board for Amanda Estates located. off of Elm Street." 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). G. L. c. 66, § lO(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, § lO(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, § lO(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

Charlie Seelig SPRl 9/2461 Page 2 December 18, 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, § lO(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, § 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). Current Petition In its December 12, 2019 petition, the Town requests "permission be given to charge for time spent on the process of redacting certain records in connection with a request made by Gordon C. Andrews ... " The Town asserts "[s]ome of the records requested by Mr. Andrews may fall under the attorney-client privilege exemption as while some communications with counsel were made public and will be released, some were not."

Charlie Seelig SPR19/2461 Page 3 December 18, 2019 Conclusion In light of the Town's petition, I find the Town has met its burden to explain how the response could not be prudently completed without the redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction. Any fee estimate by the Town must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, the requestor 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), lOA(c). Sincerely, ~.~ Supervisor of Records cc: Gordon Andrews