Timothy A. Toomey v. Rowley, Town of - Town Clerk (SPR 20213351)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 3, 2021 SPR21/3351 Catherine M. McClenaghan Town Clerk Town of Rowley 139 Main Street Rowley, MA 01969 Dear Ms. McClenaghan: On December 27, 2021, I received your petition on behalf of the Town of Rowley (Town) requesting an extension of time to produce records, 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 requests. G. L. c. 66, § 10(c), (d)(iv). As required by law, the Town furnished a copy of its petition to the requestor, Timothy Toomey. Id. On December 27, 2021, Mr. Toomey requested “…any and all information relating to Town of Rowley electric light department bills, invoices, contracts, emails, work orders or other relevant communications between the Rowley Light Department (including Personnel foreman, manager or other administrative personnel) regarding services provided to the department between July 1st and December 14th 2021 by [named law firm].” Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; 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

Catherine M. McClenaghan SPR21/3351 Page 2 January 3, 2021 (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Extension of Time to Produce Responsive Records In its December 27, 2021 petition, the Town states the following: Finally, given the timing of Mr. Toomey’s request, reduced staffing during the holidays, and the time necessitated by a thorough records search, segregation and redaction process, RMLP requests an additional 10 business days in which to complete its response to the request upon payment of the fees. I find in light of the need to collect and segregate the request, as well as the capacity of the Town to produce the request without an extension, the Town has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The Town is granted an extension of 20 business days. Please note the time may begin to run once the Town receives payment. G. L. c. 66, § 10(c). Petitions 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 municipality 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). The second prong of the test is whether the fee represents an actual and good faith

Catherine M. McClenaghan SPR21/3351 Page 3 January 3, 2021 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; 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 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). Current Petition In its December 27th petition, the Town states, “…we request authorization to charge, at a rate of $200.00 per hour, for discounted time spent by me or another member of my firm to: (1) segregate and redact emails and (2) prepare a log of any emails withheld on the basis of attorney- client privilege, as required by 950 CMR 32.06(3)(d). In addition, we are requesting an additional 20-day period in which to respond upon payment of the fees for responding to the request, discussed below.” The Town contends that “… RMLP performed an initial search of its records, and has identified approximately 220 emails (which contain memoranda within the email and extended discussions) and approximately 110 documents. Most of these records are subject to the attorney-

Catherine M. McClenaghan SPR21/3351 Page 4 January 3, 2021 client privilege or fall under the deliberative process exemption from the definition of ‘public record’ under M.G.L. c.4, §7(26)(d).” The Town explains that “…Duncan & Allen, N.E., LLC is a very small firm currently consisting of three partners and no associates or paralegals or other similar support staff. All three partners charge $400 per hour. Accordingly, the lowest paid employee with the requisite knowledge for reviewing documents for attorney-client privilege between RMLP and Duncan & Allen, N.E., LLC along with performing the segregation and redactions for producing the requested documents is one of the partners at our firm.” The Town notes that “[i]f this petition is accepted, RMLP will not assess fees for time spent by RMLP staff searching for, compiling, and producing records, even though RMLP would otherwise be entitled to assess fees for this time without permission from the Supervisor, as it has a population of less than 20,000. See M.G.L. c. 66, §10(d)(iii). Based on our review of similar requests of this nature (meaning, attorney-client communications and work-product), we estimate that it will take approximately 8 hours to review, segregate and redact the requested records and prepare the log. At $200 per hour, the fee estimate will be $1,600.” Conclusion In light of the above, I find the Town has met its burden to explain how the request could not prudently be completed without redaction or segregation or by 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 for the time spent to segregate and redact these requested records at $75.00 per hour. Further, this office encourages Mr. Toomey and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § l0(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). Any updated fee estimate by the Town must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, Mr. Toomey 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), l0A(c).

Catherine M. McClenaghan SPR21/3351 Page 5 January 3, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy Toomey Diedre Lawrence, Esq.