Peter Culhane v. Milton, Town of - Town Clerk (SPR 20202497)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 22, 2020 SPR20/2497 Kevin S. Freytag, Esq. Murphy, Hesse, Toomey & Lehane, LLP 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Freytag: I have received your petition on behalf of the Town of Milton (Town) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor, Peter Culhane. Id. In a letter dated November 10, 2020, Mr. Culhane requested various categories of records concerning the Town and Murphy, Hesse, Toomey & Lehane, LLP. Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). 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

Kevin S. Freytag, Esq. SPR20/2497 Page 2 December 22, 2020 If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Petitions 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. 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

Kevin S. Freytag, Esq. SPR20/2497 Page 3 December 22, 2020 ($.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 petition dated December 15, 2020, the Town requests an extension of 30 business days to respond to the request and permission to charge $25 per hour “for the time that it may take to segregate and redact the records.” The Town expressed it “responded to the request on December 15, 2020, in accordance with G.L. c. 66, § 102 and produced 104 pages of responsive records. No redactions were made.” The Town states it “has additional records that are responsive to the request, including bill summaries, detailed invoices for labor and special services and disbursement records. Those records contain 1849 pages. The Town estimates that there are approximately 200 - 300 more pages of detailed invoices for 2019 and 2020.” The Town notes, “[t]he records requested contain descriptions of legal services provided to the Town and may include information protected by the attorney-client privilege other statutory exemptions pursuant to G. L. c. 4, § 7(26) et. seq. (e.g. personnel matters). Therefore, the Town requests that the Supervisor of Public Records allow the Town to charge a fee for the segregation and possible redaction of those records.” The Town adds, “[b]ased on the details set forth above, the Town requests that it be allowed to charge $25 per hour to segregate and redact information based on Exemption (c). These redactions will be performed by the Office of Town Counsel because Town Counsel is the exclusive representative of the Town in this matter and is appropriately equipped to complete such segregation and redaction.” Further, “the Town requests that it be allowed to charge $25 per hour to segregate and then create a privilege log for any documents that may be protected by the attorney-client privilege. The Town is entitled to withhold records protected by the attorney-client privilege, and the Supervisor has recognized that segregation and redaction for this purpose is ‘required by law’ as that phrase is used in G.L.

Kevin S. Freytag, Esq. SPR20/2497 Page 4 December 22, 2020 c. 66, $ 10( d)(iii). See, e.g., Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444, 449-50 (2007) (recognizing the extension of the attorney-client privilege to confidential communications between governmental entities and their legal counsel); Public Records Division, ‘A Guide to the Massachusetts Public Records Law,’ Updated March, 2020, pp. 10-11 (‘Segregation or redaction under the attorney-client privilege has also been found to be ‘required by law.’).” With respect to the extension of time, the Town posits that “[b]ased on the number of records that will need to be reviewed to determine if any statutory exemptions or if the attorney- client privilege applies, as well as the forthcoming Holiday season, the Town requests, pursuant to G. L. c. 66, § 10(c) thirty (30) additional business days to reply to [the] request.” Conclusion I find that in light of the capacity of the Town to produce the request without the extension, and the efforts undertaken by the Town in fulfilling the request, the Town has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Town an extension of 30 business days to furnish copies of records responsive to Mr. Culhane’s request. See G. L. c. 66, § 10(c). Further, 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 redaction or segregation. See G. L. c. 66, § 10(d)(iv). Accordingly, it is my determination that given the nature of the requested records, the Town is permitted to charge for time spent segregating and redacting the requested records. Please note, Mr. Culhane 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: Peter Culhane Susan M. Galvin Michael D. Dennehy