Framingham Reporter v. Wellesley, Town of - Town Clerk (SPR 20210965)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 22, 2021 SPR21/0965 Ivria G. Fried, Esq. Miyares and Harrington LLP 40 Grove Street, Suite 190 Wellesley, MA 02482 Dear Attorney Fried: I have received your petition on behalf of the Town of Wellesley (Town) seeking to charge in excess of the statutory fees in responding to a request made by Framingham Reporter. G. L. c. 66, § 10(c). As required by law, it is my understanding that the Town furnished a copy of its petition to the requestor. Id. On April 5, 2021, Framingham Reporter requested “[a]ll records, documents, communications, and the like regarding the recently established ‘Wellesley Freedom Team’ described in the attached press release from Wellesley Police Chief Jack Pilecki.” 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). 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

Ivria G. Fried, Esq. SPR21/0965 Page 2 April 22, 2021 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 April 15, 2021, the Town requests authorization to charge a rate higher than $25 per hour, for actual time spent by the Town to segregate and redact the requested records. The Town cites Exemption (c) stating, “[t]he request seeks records pertaining to the Freedom Team, a new Town group that encourages those who experience threats, harassment, or violence related to race, color, sex, gender, sexual orientation, ethnicity, national origin, religion, disability, or class to contact them for help and advice.” The Town contends that “[i]t is possible that highly personal information about individuals’ personal experiences with such treatment may be discussed in responsive records.” The Town cites Exemption (d) claiming “[t]he deliberative process exemption may also apply given that the Town recently constituted the group and may be discussing, internally, next steps.” Additionally, the Town cites Exemption (n) asserting that “[t]he responsive records could contain information pertaining to the security and safety of individuals…Town officials already know that some responsive records contain information related to the creation of a new email address that if released could lead one to compromise the Town’s cyber security.” The Town’s petition also expressed that the requested records may contain Attorney Client Communications as “…it is possible that the Town could have communicated with Town Counsel about the Freedom Team’s creation.” With respect to fees, the Town explains, “[t]here are approximately 300 potentially responsive email chains. Amy Frigulietti, the Assistant Executive Director, is the lowest paid employee capable of performing this review. Ms. Frigulietti is paid $65.37 per hour. She has the authority to review these records, which may include confidential privacy information.” The Town “…estimates that it will take approximately 3 minutes, on average, to review, and as necessary, redact each of the 300 emails (total of 15 hours).” 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. Further I find that in light of the factors listed in the Town’s petition, the Town may assess a fee for time spent segregating and redacting responsive records at a rate of no more than $65.37 an hour. See -- G. L. c. 66, § 10(d)(iv). Conclusion For the reasons described above, the Town may assess a fee for the time spent to segregate and redact these requested records and assess an hourly fee at the rate of no more than $65.37.

Ivria G. Fried, Esq. SPR21/0965 Page 3 April 22, 2021 This office encourages Framingham Reporter and the Town to continue to communicate to 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 municipality to produce records sought more efficiently and affordably). Any updated fee estimate by the Town must be in compliance with this determination, the Public Records Law, and its Regulations. Please note, Framingham Reporter 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: Framingham Reporter Meghan Jop KC Kato