Lynn Gallant v. Swansea, Town of - Town Administrator (SPR 20213199)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 14, 2021 SPR21/3199 Mallory E. Aronstein Town Administrator Town of Swansea 81 Main Street Swansea, MA 02777 Dear Ms. Aronstein: I have received your petition on behalf of the Town of Swansea (Town) requesting permission to charge for time spent segregating or redacting responsive records and seeking a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(c); 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. G. L. c. 66, § 10(c). On December 1, 2021, Lynn Gallant requested the following: [1] All records from January 1, 2021 through December 1, 2021, that have been submitted to the Town Administrator, Health Department, Building Department and Fire Department regarding the health and integrity of the Town Hall Annex and Health concerns. All quotes to fix the building and or demolish if needed. All records of the scope of work done at the annex to fix the building issues and health issues, and if they all have been addressed. [2] All records from November 16, 2021 through December 1, 2021, all emails from the Town Administrator sent to all department heads, in the Town Hall Annex, Town Hall, all Department heads at the COA, Police, Highway, and Fire Department if applicable pertaining to union grievances or any other union related issues. 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). 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

Mallory E. Aronstein SPR21/3199 Page 2 December 14, 2021 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 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 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g).

Mallory E. Aronstein SPR21/3199 Page 3 December 14, 2021 Current Petition In its petition, the Town first requests that “the Town of Swansea be permitted to charge for the hourly cost of segregation and redaction of these requested records.” The Town explains the following: The scope of the request is quite broad, and directly implicates exemptions (c) and (d) of the Public Records Law, as well as the attorney-client and attorney work product privileges, and the requested records are potentially being sought in anticipation of litigation or other legal action. Great care therefore must be taken in ensuring against the inadvertent disclosure of information and documentation that could harm the Town’s policymaking and legal interests. In light of the Town’s petition, 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 or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Town may assess a charge for the segregation and redaction of such exempt material. Second, the Town requests that it “be permitted to charge for [the Town Administrator’s] search, segregation and redaction of these records at an hourly rate of $72.12, being [the Town Administrator’s] salary-equivalent hourly rate.” The Town explains the following: The nature of the requested records requires a detailed review of [the Town Administrator’s] own emails . . . across an 11-month span, and across a wide variety of potential keyword searches. For various privilege and confidentiality reasons, as well as concerns relating to the supervisor-employee relationship, [the Town Administrator] cannot allow any administrative staff to conduct a blanket review and search of [her] emails. Similarly, much of the documentation requested would need to be segregated and redacted by [the Town Administrator], in order to preserve those privileges. 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 $72.12 per hour. Conclusion Accordingly, I find the Town may assess a fee for segregation and redaction as described above, and may assess a fee limited to $72.12 per hour. Any fee estimate from the Town must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Lynn Gallant has the right to seek judicial review of this decision by

Mallory E. Aronstein SPR21/3199 Page 4 December 14, 2021 commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4); G. L. c. 66, § 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Lynn Gallant