Allen Waller v. Marblehead, Town of (SPR 20213179)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 8, 2021 SPR21/3179 Alexander M. Castro, Esq. Special Town Counsel Mead, Talerman & Costa, Alex, LLP. 30 Green Street Newburyport, MA 01950 Dear Attorney Castro: I have received your petition on behalf of the Town of Marblehead (Town) seeking a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On November 22, 2021, Allen Waller requested “…copies of all invoices submitted by Mead, Talerman, & Costa LLC for Fiscal Year 2019.” 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 a municipality’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. 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

Alexander M. Castro, Esq. SPR21/3179 Page 2 December 8, 2021 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 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 In its December 6, 2021 petition, the Town seeks “…approval to charge a segregation and redaction rate equivalent to Special Town Counsel’s rate of $210.00 per hour, as opposed to the statutory maximum rate of $25.00 per hour, and to charge for the first two hours of work performed.” The Town notes, “[t]o the extent that invoice entries include descriptions of legal services that disclose (1) the confidential communications between the Town and its legal counsel undertaken for the purpose of obtaining legal advice or assistance; (2) attorney opinion work product sought in anticipation of or during the pendency of litigation; or (3) certain attorney fact work product under Mass. R. Civ. P .26(b )(3) that was prepared in anticipation of litigation or trial, the responsive documents must be withheld and/or redacted accordingly. See G. L. c. 4, §

Alexander M. Castro, Esq. SPR21/3179 Page 3 December 8, 2021 7(26)(a) and (d); Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50 (2007); DaRosa v. City of New Bedford, 471 Mass. 446,459 (2015).” The Town contends that “…Special Town Counsel is the Town’s lowest paid - and only - employee with the knowledge and skill required to segregate and redact the responsive records in accordance with the Commonwealth’s Public Records Law. This is especially true considering that Special Town Counsel is the only one that provided the services set forth in the responsive documents. Lastly, the intent of having Special Town Counsel segregate and redact the responsive records is to provide greater transparency by redacting only those parts of said records that are protected and/or exempted from disclosure, instead of withholding them in their entirety.” 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 redaction, segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). In light of the factors in G. L. c. 66, § 10(d)(iv), I find the Town may assess a fee of $75.00 per hour for attorney 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 indicating why this 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 shall provide a response to Mr. Waller within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Waller may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, municipalities may not assess a fee for the first two 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). Further, Mr. Waller 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, § 10A. Sincerely, Rebecca S. Murray Supervisor of Records cc: Allen Waller Kyle Wiley Jason Silva