William Christina v. Danvers, Town of - Town Clerk (SPR 20211385)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 9, 2021 SPR21/1385 Diane M. Norris Town of Danvers, Town Manager 1 Sylvan Street Danvers, MA 01923 Dear Ms. Norris: I have received your petition on behalf of the Town of Danvers (Town) requesting a waiver of statutory limits on fees that may be assessed in responding to a public records request 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); see also 950 C.M.R. 32.06(4). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On May 17, 2021, William Christina requested 11 categories of records seeking “records related to 17 Bridle Spur Road, Danvers, MA, between Town employees, Town Counsel, state employees, private individuals and others.” Subsequent to the opening of this petition, Mr. Christina sent a response to this office on June 9, 2021 that address the Town’s petition. Petition 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 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

Diane M. Norris SPR21/1385 Page 2 June 9, 2021 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 ($.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 June 1, 2021, the Town requests “that it be allowed to charge $75 per hour for the time it will take the Office of Town Counsel to complete the tasks” of reviewing “the 99 records that may be protected by the attorney-client privilege.” The Town further requests that it be allowed to charge $25 per hour for the time it may take a Town employee to search, segregate and redact the records.”

Diane M. Norris SPR21/1385 Page 3 June 9, 2021 The Town provides the following estimate: “1. The Town estimates that it will take, on average, 1 minute, to search and segregate each of the 1,161 emails, identified in its initial search for a total of 19 hours and a total cost of (17*$25) $425. The Town estimated that it will take approximately 5 business days to complete this task. The Town estimates that Town Counsel will need to review, at least, the 99 records that may be protect by the attorney-client privilege and then create the necessary privilege log as required by G.L. c. 66, §10. The [Town’s] estimate that process will take an average of 5 minutes per email for a total of 8 hours and a total cost of $600. The Town estimates that it will take approximately 5 business days to complete this task. 2. The Town estimates that it will take approximately 1 minute to search and segregate each of the 556 electronic records that have been identified for a total of 9 hours for a total cost of $225. The Town estimates that it will take approximately 5 business days to complete this task. 3. The Town estimates that it will take approximately 5 hours to search and segregate the 2 boxes or records from the Building Division for a total cost of $125. The Town estimates that it will take approximately 1 business day to complete this task.” The Town explains it “will use a salaried employee, at $25 per hour, to complete the tasks below, except for the tasks outlined in the second part of Section 1, which will be completed by the Office of Town Counsel at the rate of $75 per hour.” The Town further contends that the “actual hourly rate for Town Counsel exceeds $100 per hour.” Where segregation and redaction for the attorney-client privilege is required by law, I find it is unnecessary to opine on the Town’s petition to charge for segregation and redaction. See G. L. c. 66, § 10(d)(iii). I find the Town has met its burden to assess a fee in excess of $25.00 per hour for segregation and redaction pursuant to attorney-client privileged information. 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 no more than $75.00 per hour for attorney review. Conclusion Accordingly, in light of the Town’s petition, I find the Town has met its burden to assess a fee in excess of $25.00 per hour. This office encourages Mr. Christina 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

Diane M. Norris SPR21/1385 Page 4 June 9, 2021 the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably.) Please note Mr. Christina 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, § 10A. Sincerely, Rebecca S. Murray Supervisor of Records cc: Diane M. Norris Kevin S. Freytag, Office of Town Counsel