Walter Tuvell v. Reading, Town of - Town Clerk (SPR 20213374)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 4, 2022 SPR21/3374 Laura Gemme Town Clerk Records Access Officer Town of Reading 16 Lowell Street Reading, MA 01867 Dear Ms. Gemme: I have received your petition on behalf of the Town of Reading (Town) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). From December 9, 2021 through December 23, 2021, Walt Tuvell made multiple requests for “emails sent to/from any/all Select Board members” covering various date ranges; and on December 24, 2021, he provided a modification to the categories of senders, recipients, and contents of the emails he seeks. 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 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). 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

Laura Gemme SPR21/3374 Page 2 January 4, 2022 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; 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 29, 2021 petition, the Town explains the following: The Town must review the requested records prior to release. It is possible that the records may contain information protected from disclosure. Specifically, • Exemption (a) – The Town may withhold information where a statute expressly states or necessarily implies that the public’s right to inspect the record is restricted. As a permitting body, it is possible that information protected by the Criminal Offender

Laura Gemme SPR21/3374 Page 3 January 4, 2022 Record Information Act (G.L. c.6, §167) may be shared with the Select Board. Medical information, especially given the pandemic, may also be conveyed to the Select Board. The Town would need to review such information to determine whether it is protected by the Health Insurance Portability and Accountability Act of 1996 (HIPPA). • Exemption (c) – Records that contain intimate details of a highly personal nature may be subject to withholding under Exemption (c) to the Public Records Law. The public may share such information with their elected officials in order to seek help. Additionally, the Select Board may communicate with other members or staff about Town employees. Depending on the nature of the personnel information, it may also be protected under Exemption (c). • Exemption (d) – The deliberative process exemption may apply as the Select Board members frequently communicate amongst themselves and Town staff about policy matters under deliberation. To avoid the release of materials that could taint the deliberative process if prematurely disclosed, the Town must review the records. • Exemption (n) – The responsive records may also contain information pertaining to the security and safety of individuals. These records may be withheld under Exemption (n). • Attorney Client Communications – Emails to or from Town Counsel would also be responsive to your request. Each email will need to be reviewed to determine whether it is subject to the attorney-client privilege. The essential fact here is not that these exemptions apply, but rather, that the Select Board may communicate about matters within the above enumerated exemptions to the Public Records Law. [Mr. Tuvell has] also requested the subject line in the header information. It is entirely possibly that header information could contain protected information, as outlined above. Given the potentially sensitive nature of emails sent to and from Select Board members, the Town cannot merely provide Mr. Tuvell with all of the potentially responsive records without first conducting this necessary review. . . . [The Town Clerk is] the lowest paid employee capable of performing the review for emails that do not implicate the attorney client privilege. [She is] paid $47.49 per hour. An associate in Town Counsel’s office is the lowest paid employee capable of performing the legal analysis to determine whether the attorney-client privilege applies. An associate in Town Counsel’s office charges $205 per hour. Notwithstanding the actual cost of production, the Town is only seeking to charge $25 per hour to review and redact the requested records. 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

Laura Gemme SPR21/3374 Page 4 January 4, 2022 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. In an email to the Town and this office on December 30, 2021, Mr. Tuvell states that he is “involved in good-faith ‘negotiations’ to accomplish [his] task effectively and efficiently. That magic combination hasn’t yet been reached, but progress continues to be made.” This office encourages Mr. Tuvell 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 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 agency to produce records sought more efficiently and affordably). Any fee estimate from the City must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Conclusion Accordingly, I find that to the extent the responsive records contain the exempt information described above, the Town may assess a fee for segregation and redaction. Please note, Mr. Tuvell 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: Walt Tuvell