Edward Champy v. Somerville, City of - City Solicitor (SPR 20220442)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 28, 2022 SPR22/0442 David P. Shapiro, Esq. City of Somerville Assistant City Solicitor 93 Highland Avenue Somerville, MA 02143 Dear Attorney Shapiro: I have received your petition on behalf of the City of Somerville (City) 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(d)(iv). As required by law, it is my understanding that the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c), (d)(iv). In a letter dated February 1, 2022, Edward Champy requested the following records: -Any and all records and documents related to demolition delays and historic districts from January 2021 onward. -Any and all records and documents related to 125 Highland Ave review process concerning within the possession, custody and control of the City of Somerville Historic Preservation Commission, City of Somerville Planning Board, including but not limited to the following: Applications; Public Hearing Notices; Meeting Notes; Determinations; Project Studies and Reports; Building Information; Design Documents; Correspondence with Somerville City Council/Board of Alderman, Public/Private Entities, Community/ Neighborhood Council or Civic Groups; Correspondence by or with the Mayor’s Office; Massachusetts Historical Commission; Emails, by, between, and among all members of the City of Somerville Historical Commission and Mayor's Office of Strategic Planning & Community Development, including its Secretary; Records, Documents and Internal Correspondences: Correspondences, by and between City of Somerville Historical Preservation, Massachusetts Historical Commission and each of the following named parties. 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

David P. Shapiro, Esq. SPR22/0442 Page 2 February 28, 2022 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 an agency’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. 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).

David P. Shapiro, Esq. SPR22/0442 Page 3 February 28, 2022 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 petition dated February 23, 2022, the City “…requests a waiver of the statutory limits on fees that may be assessed in responding to the public records request.” In addition, “[t]he City requests permission to charge the actual hourly rate of the individuals conducting the work.” In this matter, “[t]he hourly rate of the lowest paid person capable of segregating and redaction, a senior planner, is $45 per hour.” The City contends that “[t]he results of such searches are often voluminous, with a large number of unresponsive emails present, and therefore require even more careful review. The City has found the need to redact or withhold a variety of types of emails in similar search requests, including, but not limited to, the following: 1. Attorney-Client correspondence: departments frequently seek advice when developing policy, or when anticipating litigation, from the City Solicitor’s office; 2. Inter-agency and intra-agency memoranda and letters regarding policy positions which are still being actively developed by City of Somerville employees (Exemption (d)); and 3. Home phone or personal cell phone numbers are occasionally mentioned by City employees who are working from home or traveling to a meeting or work location (Exemption (o)).” The City’s February 23rd petition states, “[d]ue to the extensive nature of this request, the estimated number of email results, and the estimated time necessary to undertake this endeavor, the requested fee is necessary because this request cannot be ‘prudently completed without the [review and redaction].’ Further, given that the fee is not intended to ‘limit, deter or prevent access’ to the requested records, the City respectfully requests the approval of this petition.” Conclusion I find the City 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 City may assess a fee of $45.00 per hour for segregation and redaction. I encourage the parties to communicate further to enable the City to provide records in an efficient and affordable manner.

David P. Shapiro, Esq. SPR22/0442 Page 4 February 28, 2022 When preparing a fee estimate for the provision of the requested records, the City 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 City shall provide a response to Mr. Champy within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Champy may appeal the City’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. Champy 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: Edward Champy