Jonathan Hodson-Walker v. Sherborn, Town of (SPR 20212236)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 8, 2021 SPR21/2236 Ms. Jackie Morris Town of Sherborn 19 Washington Street Sherborn, MA 01770 Dear Ms. Jackie Morris: I have received your petition on behalf of the Town of Sherborn (Town) seeking permission to charge for time spent segregating or redacting responsive records, as well as a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(c), (d)(iv). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor, Mr. Jonathan Hodson-Walker. Id. In a letter dated August 17, 2021 and modified on August 23, 2021, Mr. Hodson-Walker requested various records related to the “the Town’s Conservation Commission and Department of Public Works” within the possession of the Town. Petition to Assess Fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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 or to charge in excess of $25 an hour for the provision of public 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 the 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 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

Ms. Jackie Morris SPR21/2236 Page 2 September 8, 2021 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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 31, 2021 petition states that the Town seeks “permission to charge in excess of the statutory maximum hourly rate, and permission to charge for segregation/redaction time for information not required to be redacted by law.” The Town explains, “the Town’s Information Technology consultant will need to run queries of the Town’s email and electronic document storage systems” given that “[t]he Town does not have an employee capable of performing this function in house and must use the consultant for these purposes.” Additionally, the Town states that “[the consultant is] the lowest paid employee[] capable of performing these tasks.” The Town explains that “[w]hile an exhaustive list of the potential exempt categories is not possible until the records are actually reviewed, [they] anticipate that some of the records may contain inter- and intra-agency emails related to policy positions being developed by the Town protected from disclosure under exemption (d) and privileged attorney-client communications protected from disclosure under the common law attorney-client privilege recognized in Suffolk Construction v. DCAMM, 449 Mass. 444 (2007). Accordingly, compiling responses to your requests will require a careful review of the records and segregation/redaction of exempt information within the records by counsel.”

Ms. Jackie Morris SPR21/2236 Page 3 September 8, 2021 Although the Town states that “some of the records . . . requested are likely to contain information that is exempt from disclosure under one or more exemptions in the Public Records Law, G.L. c. 4, s. 7(26),” it has not provided information regarding what records it intends to produce or why such records are likely to contain exempt information. The Town additionally requests “permission to charge in excess of the statutory maximum hourly rate,” noting that “the lowest paid employees capable of performing these tasks… are already occupied with the day-to-day business of the Town and their respective positions. Similarly the Town’s legal counsel is engaged on a number of matters and cannot focus solely on the task of responding to your multiple public records requests.” For the Town’s IT consultant, the Town seeks to charge $125 per hour for “approximately 10 hours total for all requests on which they will provide assistance.” The Town seeks to charge $195 per hour for counsel’s “review and redaction of potentially exempt records (to be initially flagged by Town officials in their review),” for an estimated total of “approximately 4 hours of time.” The Town states that the rates requested for both the IT consultant and counsel are the rates at which the Town will be billed. Conclusion I find the Town has not met its burden to explain how the response could not be prudently completed without redaction or segregation or by assessing a fee in excess of $25 per hour. See G. L. c. 66, § 10(d)(iv). Please note, however, this does not preclude the Town from charging for segregation and redaction that is required by law. Further, this office encourages Mr. Hodson-Walker 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 or agency 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 or agency to produce records sought more efficiently and affordably). When preparing a fee estimate for the provision of the requested records, the Town is advised to provide a detailed explanation to the requestor indicating why the estimated 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 provide a response to Mr. Hodson-Walker within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Jonathan Hodson-Walker