Brian J. Cruise v. Carlisle, Town of - Office of the Town Clerk (SPR 20212481)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 4, 2021 SPR21/2841 Attorney Ethan B. Dively Town of Carlisle, Office of the Town Clerk 66 Westford Street Carlisle, MA 01741 Dear Attorney Dively: I have received your petition on behalf of the Town of Carlisle (Town) seeking permission to charge for time spent segregating or redacting responsive records. 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, Mr. Brian Cruise. Id. In a letter dated September 21, 2021, Mr. Cruise requested twelve categories of records related to “the creation of a pickleball facility at 338 Bedford Road, Carlisle, MA” within the possession of the Town. Petitions 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 municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary 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 Ethan B. Dively SPR21/2481 Page 2 October 4, 2021 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 September 27, 2021 petition states that the Town requests “a waiver of statutory limits on fees for responding to a public records request.” The Town explains that “[t]here are approximately 100 potentially responsive emails and documents,” and that they anticipate that the records will “contain protected information.” Specifically, the records may contain information protected by Exemption (d) and attorney-client privilege. The Town states “[t]he fee is… necessary because the Town cannot properly respond to the request without segregating and redacting the records.” Specifically, the Town explains that “[t]he deliberative process exemption may apply given that the Town is actively developing a position with respect to the proposed donation that is the subject of these requests. To avoid the release of materials that could taint the deliberative process if prematurely disclosed, the Town must review the records.” With respect to attorney- client privilege, the Town explains that they have “communicated with, and sought advice from Town Counsel about the proposed donation that is the subject of these requests” and that therefore, “[r]esponsive communications and draft documents must be reviewed prior to release.”

Attorney Ethan B. Dively SPR21/2481 Page 3 October 4, 2021 The Town states that the “lowest paid employee capable of performing [the] review… is paid $31.74 per hour.” The Town “estimates that it will take approximately 3 minutes, on average to review, and as necessary, redact each of the 100 emails and documents” for a “total of 5 hours.” The Town states that “the fee represents an actual and good faith representation to comply with the request.” The Town explains that “[t]he fee is also not designed to limit, deter, or prevent access to the records.” Conclusion I find the Town has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). I find the Town may assess a fee limited to $31.74 per hour for review. 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 Mr. Cruise within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Cruise may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Cruise 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: Mr. Brian Cruise Ms. Peggy Wang