Patrick Higgins v. Swansea, Town of - Town Administrator (SPR 20220466)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 2, 2022 SPR22/0466 Mallory E. Aronstein, Town Administrator Office of the Town Administrator Swansea Town Hall 81 Main Street Swansea, MA 02777 Dear Mallory E. Aronstein: I have received your petition on behalf of the Town of Swansea (Town) seeking permission to charge for time spent segregating or redacting responsive records. 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), (d)(iv). In a letter dated February 15, 2022, Patrick Higgins requested the following records: 1. a copy of the town administrator’s new contract that was executed tonight during the Feb 15, 2022 Selectmen meeting; and 2. .pdf file copy of the Selectmen’s meeting agenda packets from Jan 1, 2021 to present. 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). 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 SPR22/0466 Page 2 March 2, 2022 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). 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 25, 2022, the Town states, “[i]n accordance with M.G.L. c. 66, § 10(d)(iii) and 950 CMR 32.06(4)(h), I hereby petition that the Town of Swansea be permitted to charge for the hourly cost of segregation and redaction of these requested records.”

Mallory E. Aronstein SPR22/0466 Page 3 March 2, 2022 The Town contends that “[t]he scope of the request directly potentially implicates exemptions (a), (c), (d) and (h) of the Public Records Law, as well as the attorney-client and attorney work product privileges. Careful review must also occur in the context of the interrelation between the Public Records Law and the Open Meeting Law, with respect to whether requested records were actually used at an open session meeting.” The Town notes: •All records used during executive session remain wholly exempt pursuant to Public Records Law, Exemption (a)-The Statutory Exemption, insofar as M.G.L. 30A, § 22(f) provides that all executive session documents are exempt while the purpose of holding the meeting in executive session remains valid. • For all records used at an open session, any personnel information, including applications of potential employees, but excepting only resumes, is exempt from disclosure pursuant to Public Records Law, Exemption (a) and M.G.L c. 30A, § 22(e). • For any records in the agenda packets that were not actually used at an open session, the full breadth of exemptions under the Public Records Law continue to apply. The Town posits that “[i]t will thus be necessary to determine which documents in the packets were actually used in the open meetings, and thereafter to determine which available exemptions could apply based upon those categorizations. Towards that end, it is likely that at least some of the requested records are subject to one or more of the following exemptions under the Public Records Law, and therefore will be withheld, in whole or in part: The Attorney - Client and Work Product Privileges; Exemption (a) - Statutory Exemption; Exemption (c) -The Personnel Files Exemption; Exemption (c) - The Privacy Exemption; Exemption (d) -The Deliberative Process Exemption; and Exemption (h) -The Public Bidding Exemption.” The Town also “…believes it to be its legal obligation to redact social security numbers and other sensitive and private information from license applications and other documents.” Conclusion 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 --

Mallory E. Aronstein SPR22/0466 Page 4 March 2, 2022 contain the exempt information as described above, the Town may assess a charge for the segregation and redaction of such exempt material. When preparing a fee estimate for the provision of the requested records, the Town 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 Town shall provide a response to Mr. Higgins within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Higgins may appeal the Town’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. Higgins 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: Patrick Higgins