Cindy L. Christiansen, PhD v. Milton, Town of - Town Clerk (SPR 20212184)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1, 2021 SPR21/2184 Attorney Kevin Freytag Town of Milton Town Clerk 525 Canton Avenue Milton, MA 02186 Dear Attorney Freytag: I have received your petition on behalf the Town of Milton Town Clerk (Town) seeking permission to charge for time spent segregating or redacting records responsive to a public records request. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor, Ms. Cindy Christiansen. Id. In a letter dated August 12, 2021, Ms. Christiansen requested the following documents within the possession of the Town: A. Public records of communication between 1. Selectman Conlon and Logan CAC Alternative David Godine, 2. Selectman Conlon and Town Administrator Fagan, 3. Selectman Conlon and ANAC Chair Roxanne Musto, 4. Town Administrator Fagan and Logan CAC Alternative David Godine, 5. Town Administrator Fagan and ANAC Chair Roxanne Musto, 6. Town Administrator Fagan and Selectman Burnes, and 7. Town Administrator Fagan and Selectman Hurley, about Cindy Christiansen, or the Logan CAC representative during the time period August 15, 2015 through October 6, 2015. (Titles of individuals reflect positions during this request period.) B. And communication records between the public or press and Selectmen Conlon, Burnes, Hurley or Town Administrator Fagan during the time period September 29, 2015 and October 6, 2015. C. And other Town of Milton records that mention Cindy Christiansen or the Logan CAC representative during September 29, 2015 through October 6, 2015. (Please include emails from individual's town, work, and private email accounts.). 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

Attorney Kevin Freytag SPR21/2184 Page 2 September 1, 2021 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 an agency’s petition to allow the agency 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 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 agency 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) 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

Attorney Kevin Freytag SPR21/2184 Page 3 September 1, 2021 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 August 26, 2021 petition states that the Town requests “that it be authorized to charge a fee of $25 per hour for Town Counsel (the undersigned firm) to review documents that may be responsive to this request in to determine if the records are in fact responsive to the request and make any redactions that may be appropriate under the public records law.” The Town explains that the responsive records contain “communications that include Select Board members and Town Administrator. These individuals regularly communicate with the Office of Town Counsel; therefore, these records must be reviewed to determine if they are protected by the attorney-client privilege.” Additionally, the Town expects the responsive records to include communications “regarding matters that may implicate various exemptions to the Public Records Law, including personnel matters and the deliberative process.” The Town explains that “Section B of the request, [which] seeks email to and from the public which will invariably contain spam (i.e. non-responsive records) and personal email addresses and telephone numbers which are subject to redaction pursuant to the privacy exemption in Exemption (c) of the Public Records Law.” The Town, therefore, “will need to perform additional ‘Search Time’ to ensure that responsive records are identified and ‘Segregation Time’ to determine what, if any, redactions are necessary under the Public Records Law.” The Town estimates that there are 918 responsive emails, each of which will take “between 1 and 2 minutes to review each of the records identified above to determine if they are in fact responsive, determine if any redactions are applicable under the Public Records Law, and then make the necessary redactions.” Therefore, “the Town estimates that it will take approximately 15 hours (i.e. 918 records/60 records per hour) to complete its review of the records. Understanding that the Town may not charge for the first 2 hours of that process, the Town’s fee estimate is $325 (13 hours x $25).” Conclusion The Town is permitted to charge for time spent segregating and redacting the requested records. When preparing a fee estimate for the provision of the requested records the Town is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Town must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The Town must provide a response to Ms. Christiansen within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms.

Attorney Kevin Freytag SPR21/2184 Page 4 September 1, 2021 Christiansen may appeal the Town fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Ms. Christiansen 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: Ms. Cindy Christiansen