John J. McNamara v. Wareham, Town of - Fire District (SPR 20211580)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 1, 2021 SPR21/1580 Christopher K. Sweeney, Esq. Conn Kavanaugh Rosenthal Peisch & Ford One Federal Street, 15th Floor Boston, MA 02110 Dear Attorney Sweeney: On June 25, 2021, this office received your petition on behalf of the Wareham Fire District Water Department (Department) seeking relief from its obligation to produce responsive records, an extension of time to produce records, and a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § l0(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of their petition to the requestor, Attorney John J. McNamara of Lane McNamara, LLP. G. L. c. 66, § 10(c). On June 11, 2021, Attorney McNamara requested five categories of records concerning the Department. 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

Christopher K. Sweeney, Esq. SPR21/1580 Page 2 July 1, 2021 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 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; 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 estimate 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

Christopher K. Sweeney, Esq. SPR21/1580 Page 3 July 1, 2021 ($.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) 2 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). Current Petition The Department’s June 25th petition states, “Wareham submits this petition requesting that the Records Access Officer either deny the Requests or: 1) grant Wareham a 60-day extension to respond to the Requests; and 2) allow Wareham to bill Methuen at Wareham’s attorneys’ regular rate of $305 per hour for work identifying, reviewing, separating, and redacting documents responsive to the Requests.” The Department notes, “[t]he Requests seek tens of thousands of pages of records created and modified over at least a three-year period. These documents are in the possession of a number of custodians and are stored in numerous different places. Because Wareham’s attorneys have been involved in this dispute for about a year, many responsive records are protected from disclosure, in whole or in part, by the attorney-client privilege and/or work product doctrine. Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 460-61 (2007) (public municipalities and agencies may invoke attorney-client privilege in declining to produce public records). Other documents may be covered by the deliberative process privilege. For documents that are partially privileged, Wareham must undertake the labor-intensive task of redacting the privileged components, while leaving the remainder for production.” The Department posits that “Methuen seeks records from Wareham for use in litigation over whether Methuen is entitled to additional compensation or time for its work on the Project. Therefore, the Requests plainly serve a commercial purpose. G. L. c. 66 § 10(d)(ix) (‘[C]ommercial purpose shall mean ... the use of information from the public record to advance the requester’s strategic business interests ....’) And second, because of the imminent litigation between the Parties, Wareham’s attorneys must review, segregate, and redact all documents potentially responsive to the Requests to ensure that Wareham does not inadvertently produce documents covered by the attorney-client privilege, the work-product doctrine, or any other applicable privilege.”

Christopher K. Sweeney, Esq. SPR21/1580 Page 4 July 1, 2021 The Department asserts that “[a]lthough Wareham has not yet been able to determine the exact volume of documents responsive to the Requests - it undoubtedly will be thousands of pages - it estimates that its attorneys will require 100 hours to segregate and redact privileged documents from the balance of its production. At the rate of $305 per hour (which is the rate Wareham pays for the most junior attorney assigned to this matter), the total estimated cost for this work is $30,500. Given the amount in controversy in this matter - approximately $1MM per Methuen’s claim - and the size of Methuen’s business and operations, this amount is both reasonable and affordable.” Conclusion I find that in light of the volume of responsive records the Department has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 30 business days to furnish copies of records responsive to Attorney McNamara’s request See G. L. c. 66, § 10(c). The Department is advised it must provide the records in a manner consistent with the Public Records Law and its Access Regulations. With respect to the Department’s petition to assess fees, I find the Department 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 Department’s petition, the Department may assess a fee of $75.00 an hour. See G. L. c. 66, § 10(d)(iv). Please note, Attorney McNamara 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 J. McNamara, Esq. Wendy Lemieux