Elizabeth Warren v. Lexington, Town of (SPR 20220155)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 7, 2022 SPR22/0155 Jim Malloy Records Access Officer Town of Lexington 1625 Massachusetts Ave Lexington, MA 02420 Dear Mr. Malloy: I have received the petition of Elizabeth Warren appealing the response of the Town of Lexington (Town) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On November 16, 2021, Ms. Warren requested: [1] [A]ll emails [from a list of individuals] from March 2020 to present related to the construction of [a named location] and the proposed removal of a white pine at [a named location;] [2] For [a named individual], I would like all emails to and from town officials over this period, independent of whether they were specific to construction at [a named location;] [3] For [a named individual], I would like all emails from March 2018 to present related to his study to be an arborist and gain ISA certification[;] [4] [A]ny emails where [a named individual] grants a waiver to [a named individual] on a tree removal permit or [a named individual] requests a delay in applying for the permit (what is noted below in doc requests as “addendum[;]” [5] For [a named individual], I would like emails to/from [a list of named individuals] about removal of trees from accepted and unaccepted streets and how bylaw is/isn’t applied – timing beloved to be October / November 2021[;] [6] For [a named individual], I would like to be sure to include the email from me dated Nov. 12 confirming that they didn’t follow bylaws that he then forwarded to 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

Jim Malloy SPR22/0155 Page 2 February 7, 2022 [a named individual] with a comment about upcoming construction at [a named location, and;] [7] [A]ny and all notes, documents or drafts of documents related to tree removal at [a named location] from July 2020 to present,” including but not limited to “any documentation of issuing demo and building removal permits at [a named location] without a tree, waivers granted on the permit or permission to submit the doc as an ‘addendum’ as stated by the town manager. Previous Fee Estimate The records sought by Ms. Warren have been the subject of a previous fee estimate and petition. See SPR21/3393 Supervisor of Records Determination (January 5, 2022); SPR21/3149 Supervisor of Records Determination (December 6, 2021). In SPR21/3393, Ms. Warren appealed the Town’s revised fee estimate from December 13, 2021. Subsequent to Ms. Warren’s appeal, the Town provided another supplemental response and fee estimate on January 12, 2022. Unsatisfied with that supplemental response and fee estimate, Ms. Warren petitioned this office and this appeal, SPR22/0155, was opened as a result. Fee estimate – municipalities 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). The Town’s December 13th and January 12th Fee Estimates On December 13, 2021, the Town stated:

Jim Malloy SPR22/0155 Page 3 February 7, 2022 The Town searched its email archives for messages matching your request, yielding approximately 16,000 emails. It exported those emails (and attachments) to Town Counsel … You have asked the Town to search for emails to and from Town Counsel. The vast majority of emails responsive to such a search will be privileged … We estimate that we can review these emails at an average rate of 100 emails per hour. At an average rate of 100 emails per hour, reviewing these 16,000 emails will take 160 hours … The Town’s revised fee estimate is $3,325, allocated as follows: 1. Search time: $325. Based on time already spent configuring and executing email searches and searching for documents, the Town estimates that searching for documents will require approximately fifteen hours. The estimate includes two free hours as statutorily required for a town the size of Lexington. Thirteen hours at $25 per hour yields a total cost of $325. 2. Segregation and redaction time: $3,000. As described above, Town Counsel expects to spend 160 hours reviewing these documents. We estimate that three- quarters of that time will be spend identifying responsive documents, and the remaining one-quarter will be spent identifying which responsive documents are privileged and redacting privileged matter. Forty hours at $75 per hour yields a total cost of $3,000. On January 12, 2022, the Town provided a revised fee estimate which states in pertinent part: First, the Town does not believe the “attorney-client privilege applies to all 16,000 documents…” Instead, the Town believes there are likely many privileged communications among the potentially responsive records for two reasons. First, you specifically requested that the Town search for communications including both Town employees and Town Counsel (i.e., attorney-client communications). Second, your requests encompass information regarding how the Town construes its bylaws, an issue [Town counsel is] regularly consulted on … Second, the Town has [not] waived privilege by including third parties on certain of the communications to [Ms. Warren] and to the Supervisor’s office…Sending nonprivileged communications, or including third parties on such non-privileged

Jim Malloy SPR22/0155 Page 4 February 7, 2022 communications, does not waive the privilege over other, privileged communications … Third, the Town is not required at this stage to prove any particular document is privileged. The Town need only provide a good-faith estimate of how much time it will take to segregate and redact documents for privilege … Finally, [Ms. Warren’s request] that the “Supervisor … require Town and Town Counsel to provide for each of the documents the detail required” to prove the Town’s claim of privilege is outside the scope of the Requests. [One of Ms. Warren’s requests for records] is clear: “For all emails…related to counsel, I am not asking for privileged communications.” Privileged documents are not responsive to this request, and the Town need not give reasons for not producing a nonresponsive document … In calculating the time required to segregate and redact records to protect the attorney-client privilege…the records found in [Requests #2, 3, and 4] should not have been counted in the Town’s estimate of time required to segregate and redact records to protect the attorney-client privilege. Accordingly, the Town’s revised fee estimate is $2,350. See [the Town’s December 12th fee estimate] (estimating fees based on number of potentially privileged documents). Current Appeal In her current appeal, Ms. Warren stated, “the Town[‘s supplemental response] is inadequate, particularly, but not exclusively in regard to the interpretation and application of attorney client privilege. Please see the attached email that shows some of these same records, provided un-redacted to a different requester.” I find it unclear how attorney-client privilege could be implicated in categories of emails where Town Counsel is not included. The Town must clarify this. Further, I find it unclear how the Town estimates that it will require 15 hours to search for the responsive documents. The Town must describe in detail the tasks involved in searching for the documents and how the tasks will total 15 hours. Further, I find the basis of the revised fee unclear. Particularly, it is unclear how the Town calculated its revised fee after excluding certain categories of documents from its fee estimate. The Town must clarify these points. See G. -- L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable).

Jim Malloy SPR22/0155 Page 5 February 7, 2022 Conclusion Accordingly, the Town is ordered to provide Ms. Warren with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Elizabeth Warren