Steven C. Reingold, Esq. v. Concord, Town of - Town Clerk (SPR 20210553)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 12, 2021 SPR21/0553 Mina S. Makarious, Esq. Anderson & Kreiger LLP 50 Milk Street, 21st Floor Boston, MA 02109 Dear Attorney Makarious: I have received your petition on behalf of the Town of Concord (Town) seeking to charge $250.00 per hour in responding to a request made by Attorney Steven C. Reingold of Saul Ewing Arnstein & Lehr LLC. G. L. c. 66, § 10(c). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor. Id. In a letter dated December 4, 2020, Attorney Reingold requested 21 categories of records concerning the Town and the Estabrook Trail Action. Petitions to Assess Fees - Municipality A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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

Mina S. Makarious, Esq. SPR21/0553 Page 2 March 12, 2021 receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In its March 5, 2021 petition, “…the Town seeks permission, pursuant to G.L. c. 66, § 10(d)(iv) and 950 CMR 32.06(4)(g) and (h), to charge fees in excess of $25 per hour to compile, segregate, and redact certain records initially requested on December 4, 2020 by Steven C. Reingold.” Specifically, the Town seeks “…an upward adjustment for the fees incurred by Town Counsel at its lowest Municipal Associate rate of $250/hr.” The Town asserts it “…has worked with Attorney Reingold since December 4, 2020 to search for and produce documents responsive to the Requests…The most recent search terms requested by Attorney Reingold on February 17 (representing a subset of the overall Request) returned 15,871 results, even after excluding communications to and from legal counsel.” Further, “[a]s noted, the group of documents now requested are related to the Estabrook Road Action. Even excluding direct communications with counsel, the responsive records are certain to include internal Town discussions of legal advice and work product related to the ongoing litigation. Accordingly, after identifying and compiling the potentially responsive records, our office will be required to review each document. To adequately identify and protect privileged information, that review must be performed by a person who is familiar with the lawsuit and is able to identify communications that seek or reflect legal advice, especially when direct communication with an attorney is not involved.” The Town contends that “[a]uthorizing fees in excess of $25/hour, including for segregation and redaction of records, would help ensure that the Town’s commitment to transparency and its legal duty to comply with the Public Records Act do not result in further disruption to the Town’s finances and other municipal responsibilities.” Additionally, the Town asserts “…the Town’s petition is not intended to prevent access to the requested records. The Town will produce the responsive records, using the appropriate personnel.” Conclusion 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). In light of the factors in G. L. c. 66, § 10(d)(iv), I find the Town may assess a fee of no more than $75.00 per hour for attorney review. Further, this office encourages Attorney Reingold and the Town to continue to communicate to facilitate providing records more efficiently and affordably. 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 shall provide a response to Attorney Reingold within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Reingold may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1).

Mina S. Makarious, Esq. SPR21/0553 Page 3 March 12, 2021 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: Steven C. Reingold, Esq. Austin P. Anderson, Esq. Kaari Mai Tari