John Connelly v. Norfolk, Town of - Town Clerk (SPR 20202125)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2020 SPR20/2125 Peter L. Mello, Esq. Murphy, Hesse, Toomey & Lehane, LLP Town of Norfolk 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Mello: I have received your petition on behalf of the Town of Norfolk (Town) requesting permission for a waiver of statutory limits on fees that may be assessed in responding to a request. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Town furnished a copy of their petition to the requestor. G. L. c. 66, § 10(d)(iv). On October 19, 2020, Attorney John Connelly requested: “1. Copies of all internal Town documents and correspondence regarding the Waste Water Treatment Plant from 2015 through the present. 2. Copies of all internal Town documents and correspondence regarding the revenues received and/or paid by the Town regarding the wireless communication carrier with antenna on the Town-owned water tower located on Lot 26 on Land Court Plan 37477G from 2015 through the present.” Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency 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, § 10(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, § 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 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

Peter L. Mello, Esq. SPR20/2125 Page 2 November 9, 2020 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, § 10(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 such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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.M.R. 32.06( 4)(g). Current Petition In its November 2, 2020, petition, the Town requests “…the Supervisor's waiver of statutory limits to fees assessed to segregate and/or redact potential records.” The Town states “[w]hile as currently framed the Request is incapable of precise or meaningful interpretation, its seemingly boundless terms appear to seek a universe of documents that encompass a virtually unlimited scope and likely would require several weeks or months at a minimum to search, segregate and redact, at a potential cost of tens of thousands of dollars.” The Town indicates “[i]n its current form the Request would encompass potentially tens of thousands of records spanning several years from dozens of officials, the assembly and review of which would consume weeks or months of diligent coordination and resources among numerous Town employees, officials and representatives. Forcing the Town to complete this labor-intensive and

Peter L. Mello, Esq. SPR20/2125 Page 3 November 9, 2020 sensitive process at a fraction of the reasonable cost therefor, would accrue unfairly to the Town's (and taxpayers') profound fiscal and administrative detriment.” The Town contends “Attorney Connelly pursues the requested records in connection with his performance of commercial legal representation services to his client, NTC.” The Town states “…Attorney Connelly has conveyed the Request in the midst of and in connection with a legal dispute…between the Town and his client, Norfolk Town Center, LLC (‘NTC’) regarding sewer capacity as part of a property development project, the Town's response to the Request of necessity would involve the undersigned Town Counsel's detailed search, segregation and redaction to ensure the protection of privileged and otherwise exempt documents.” The Town explains “Attorney Connelly seeks the underlying records in connection with the Pending Legal Dispute between NTC and the Town, namely regarding payments for wastewater treatment capacity pursuant to an agreement between the parties dated September 10, 2014, which capacity NTC secured as part of a lucrative development project permitted under G.L. c. 40B. As the parties recently have agreed to participate in an upcoming mediation in an attempt to resolve their dispute, any records to be produced in response to the Request, or any clarification or modification thereof, would require Town Counsel's careful review, segregation and redaction of privileged and other exempted records.” The Town contends “[b]ecause Town Counsel is the exclusive representative of the Town appropriately equipped to complete such segregation and redaction, the Supervisor should allow the Town to charge Attorney Connelly for such segregation and redaction time at Town Counsel's rate of $200 per hour. In this context the Supervisor also should allow the Town to assess fees for its segregation and redaction of all records, particularly insofar as even nonprivileged but otherwise exempt requested records largely or wholly relate to, and are inextricably intertwined with, the Pending Legal Dispute, and cannot be illogically disentangled from it to the Town's profound detriment and disadvantage.” The Town further contends “…as a sophisticated real estate developer, NTC possesses ready financial ability to pay the increased fee and bears no resemblance whatsoever to the sort of requestor for whom the ‘public interest’ might be ‘served by limiting the cost of public access to the records’ under Section l0(d)(iv).1. To the contrary, in the context of the Pending Legal Dispute and NTC's attempt to avoid lawfully assessed and delinquent charges for sewer capacity, the public interest, and protection of the public fisc, favors the Town in this matter and fully supports its request to assess increased charges under Section l0(d)(iv).” Given the records likely contain privileged information, 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, § 10(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 $75 per hour. This office encourages Attorney Connelly and the Town to continue to communicate to

Peter L. Mello, Esq. SPR20/2125 Page 4 November 9, 2020 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 agency to produce records sought more efficiently and affordably). Any fee estimate by the Town must be in compliance with this determination, the Public Records Law, and its Access Regulations. Conclusion For the reasons described above, I find the Town has met its burden to explain how the response could not be prudently completed without 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. However, this fee is limited to $75 per hour for the time spent to segregate and redact these requested records. When preparing a fee estimate for the provision of the requested records, the Town is advised to provide a detailed explanation to the requestor indicating why this estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Town must provide a response to Attorney Connelly within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Connelly may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). 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), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: John Connelly, Esq.