Nathaniel Stevens, Esq. v. Wellesley, Town of - Town Clerk (SPR 20220810)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 12, 2022 SPR22/0810 K.C. Kato Town Clerk Town of Wellesley 525 Washington Street Wellesley, MA 02482 Dear Ms. Kato: I have received the petition of the Town of Wellesley (Town) seeking a waiver of statutory limits on fees that may be assessed in responding to the request and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, the Town furnished a copy of this petition to the requestor. Id. On March 23, 2022, Attorney Nathaniel Stevens requested twelve categories of records, “related to the proposed Hunnewell Track and Field Project.” 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). 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

K.C. Kato SPR22/0810 Page 2 April 12, 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) 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 April 6, 2022 petition, the Town states: Altogether, and after spending more than 15 hours conducting the searches and undertaking some de-duplication efforts, the Town and district have concluded that there are approximately 5500 additional records responsive to the request. It is likely that the Town must redact or withhold many of these records because they are subject to one or more of the exemptions to the Public Records Law. • Exemption (a)—Attorney Client Communications. Portions of the requested records may be protected under Exemption (a) as it applies to the attorney-client privilege. It is common for town personnel and volunteers to ask town counsel for

K.C. Kato SPR22/0810 Page 3 April 12, 2022 legal advice and for such advice to be given via email or other written correspondences. Such communications are not subject to release under the Public Records Law. The records must be reviewed to ensure that the privilege remains intact. Further, Town attorneys will need to produce a privilege log. • Exemption (c) – Privacy. The records may contain the personal email addresses and cell phone numbers of private citizens. This information can be withheld and redacted under Exemption (c) because the public interest in the disclosure of such information does not outweigh the privacy interests. See A Guide to the Massachusetts Public Records Law, page 19. The correspondences will need to be reviewed for such information. • Exemption (d)—Deliberative Process. It is likely that some of the records are protected under this exemption, which prevents the release of materials that could taint the deliberative process if disclosed prematurely. Here, the requestor seeks records related to a question to install sport lighting at the Hunnewell Track and Field on land under the control of the Natural Resources Commission (NRC) but used by the School Committee. As of the date of the request, the relevant public bodies have not yet decided whether such lighting is appropriate on NRC land. Releasing emails and correspondences that contain draft plans, opinions, or other non-factual documents could taint the deliberative process. It is imperative that the Town review these records to ensure that such information is not inadvertently released. Based on 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 contain the exempt information as described above, the Town may assess a fee for the segregation and redaction of such exempt material. Fee in Excess of $25.00 per hour In its petition, the Town also states the following concerning its request to charge a fee in excess of $25.00 per hour: There are approximately 5500 potentially responsive records. [The Town Clerk] is the lowest paid employee capable of performing this review; the costs associated with [the Town Clerk] are $56.04 per hour. She has the authority to review these records and the understanding of how to apply these redactions and segregation. 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 assessing a fee

K.C. Kato SPR22/0810 Page 4 April 12, 2022 in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). I find the Town may assess a fee limited to $56.04 per hour. Conclusion Accordingly, to the extent the responsive records contain the exempt information described above, the Town may assess a fee for segregation and redaction. Further, as described above, the Town may assess a fee limited to $56.04 per hour. Please note, Attorney Stevens 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: Attorney Nathaniel Stevens