Ronald Alexander v. Wellesley, Town of (SPR 20200259)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 14, 2020 SPR20/0259 Meghan C. Jop Town of Wellesley, Town Hall 525 Washington Street Wellesley, MA 02482 Dear Ms. Jop: I have received your petition on behalf of the Town of Wellesley (Town) seeking permission to charge $33.85 per hour in responding to a request made by Ronald Alexander. G. L. c. 66, § lO(c), (d)(iv). As required by law, the Town furnished a copy of their petition to the requestor. Id. On February 4, 2020, Mr. Alexander requested "all email Sent or Received by Board of Selectmen member Thomas Ulfelder since the start of his term(s) as a Board of Selectmen member." Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the agency to comply with the request. G. L. c. 66, § lO(d)(iv). 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not 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 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

Meghan C. Jop SPR20/0259 Page 2 February 14, 2020 such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; ·2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § I 0( 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, § lO(d)(iii). Where appropriate, municipalities may include as paii 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, § 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 petition to this office dated February 11, 2020 the Town states, "I am writing to petition for a waiver of statutory limits on fees for responding to a public records request. I request authorization to charge, at a rate of $33 .85 per hour to: (1) segregate and redact emails and (2) prepare a log of any emails withheld on the basis of attorney-client privilege ... " The Town "estimates that this review will take approximately 5.5 hours to complete." The Town "has determined that there are 110 emails that contain the word 'Ronald Alexander,' or 'Ron Alexander."' The Town cites Exemption (c) explaining "Mr. Ulfelder may discuss how a particular employee handles or responds to one of Mr. Alexander's public records requests in an email communication." Further, "Mr. Ulfelder may communicate about highly private issues ... " The Town cites Exemption ( d) claiming, "it is possible that the potentially responsive records could contain information pertaining to on-going deliberations that if released could taint the deliberative process." In addition, the Town claims attorney-client privilege explaining that Mr.

Meghan C. Jop SPR20/0259 Page3 February 14, 2020 Alexander "has also filed a citizen's petition for consideration at this year's annual Town Meeting. It is possible that Mr. Ulfelder communicated with Town Counsel on these matters." The Town notes that for all emails "implicating the Attorney-Client privilege, I am the lowest paid employee capable of performing this review because I am the only employee with the authority to review these emails and with the necessary knowledge of the Public Records Law. I am paid $109.89 per hour." However, the Town "only seeks permission to charge $33.85 per hour, which is the hourly rate of Cathryn Meagher, Executive Assistant to the Executive Director of General Government Services." Further, the Town identifies that they are "extremely familiar redacting records of this type and estimate that it will take approximately 3 minutes, on average, to review and as necessary, redact each responsive record. Thus, with 110 potentially responsive records, it will take 5.5 hours to segregate and redact the records .... The increase in the fee from $25 per hour to $33.85 per hour is not only modest but is far less than the Town will actually incur in responding to the request." The Town argues that it is "only fair to the citizens of Wellesley that the Town be allowed to recoup at least some of its costs in responding to this request." Given these records may contain confidential information exempt under the attorney client privilege, and Exemptions (c) and (d) under the Massachusetts Public Records Law, I find the Town has met its burden to explain how the request could not prudently be completed without redaction or segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § lO(d)(iv). Further, I find the Town has established how it may assess a fee for the time spent to segregate and redact these requested records at $33.85 per hour. Conclusion For the reasons described above, the Town may assess a fee for the time spent to segregate and redact these requested records at a rate not exceeding $33.85 per hour. 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, Rebecca S. Murray Supervisor of Records cc: Ronald Alexander