Debbie Conant v. Westwood, Town of - Clerk's Office (SPR 20212094)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 31, 2021 SPR21/2094 Patrick J. Ahearn, Esq. Town Counsel Town of Westwood 580 High Street Westwood, MA 02090 Dear Attorney Ahern: I have received the petition of Debbie Conant appealing the response of the Town of Westwood (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 6, 2021, Ms. Conant requested “[t]wo RFP’s + Responses for Town Council position.” Previous Appeal This request was the subject of a previous appeal. See SPR21/1188 Supervisor of Records Determination (May 24, 2021). In my May 24th determination, I closed SPR21/1188 in light of the Town’s intent to provide a supplemental response. Subsequently, the Town provided a revised fee estimate on June 7, 2021. Unsatisfied with the Town’s response, Ms. Conant appealed, and this case was opened as a result. Fee Estimate – Municipalities 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) 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, 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

Patrick J. Ahearn, Esq. SPR21/2094 Page 2 August 31, 2021 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). The Town’s June 7th Response In its June 7, 2021 fee estimate, the Town states: Specifically, the RAO requested payment of $62.50 for 30 minutes to gather the electronic documents by the Purchasing Director and for 2 hours of [Town Counsel’s] time to review the files. The cost that is being requested is $25.00 per hour times 2.5 hours equaling $62.50. [Town Counsel] asked to review them in paper form and [the Town] did not request payment for the hour it took to print and assemble the documents via hard copy as that was [Town Counsel’s] preference. . . . [Town Counsel] believe[s] that there are seven (7) exemptions that may apply to this material need to be reviewed for. They are as follows: 1) The Privacy Exemption, (Exemption c) exemptions of personal private information that should not be disclosed publically. 2) Statutory Exemption, (Exemption a), exemptions that are mandated by statute. 3) Deliberative Process Exemption (Exemption d), an exemption that allow a government agency to prevent the release of information that could explain policy decisions or positions. 4) Personal Materials Exemption, (Exemption e), materials or notes prepared by an individual that he or she may use for his or her work and that are not properly part of the file. 5) Investigative Material (Exemption f), any evidence of an Investigation, I do not know if any background checks were done on any of the applicants and if so what those materials might contain. 6) Trade Secrets, (Exemption g), I do not know if any of the firms who applied did so and discussed or presented material they may claim a trade secret on. 7) Questions and Answer Materials (Exemption l), or scoring sheets to evaluate firms and individuals. Based on the Town’s response, it is unclear why it requires 2 hours of time to review and redact the responsive records. The Town must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable).

Patrick J. Ahearn, Esq. SPR21/2094 Page 3 August 31, 2021 Additionally, the Town must indicate whether the segregation and redaction is required by law. Please be advised that information that is “required by law” to be segregated or redacted is found in statutes that explicitly indicate that certain records or information are not public records. Some common examples are the student record statute (G. L. c. 71, § 34D), the Criminal Offender Record Information (CORI) Act (G. L. c. 6, § 167), and laws regarding the confidentiality of domestic violence records (G. L. c. 41, § 97D; G. L. c. 41, § 98F; G. L. c. 209A, § 8). These statues operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege has also been found to be “required by law.” Under the Public Records Law, 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. G. L. c. 66, § 10(d)(iii). Consequently, the Town must explain whether its hourly rate is that of the lowest paid employee with the necessary skill. Conclusion Accordingly, the Town is ordered to provide Ms. Conant with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, .n .. J- 11.~~-, ~ ~ ~ . Rebecca S. Murray Supervisor of Records cc: Debbie Conant