Barbara Atstupenas v. Blackstone, Town of (SPR 20221769)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 3, 2022 SPR22/1769 Christopher L. Brown, Esq. Miyares and Harrington LLP 40 Grove Street, Suite 190 Wellesley, MA 02482 Dear Attorney Brown: On August 1, 2022, this office received your petition on behalf of the Town of Blackstone (Town) requesting 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. G. L. c. 66, § 10(c). On July 18, 2022, Barbara Atstupenas requsted “[t]he transcripts only, of the L’Italien report from the investigation on the Blackstone Police Department.” 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. The second prong of the test is whether the fee represents an actual and good faith 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

Christopher L. Brown, Esq. SPR22/1769 Page 2 August 3, 2022 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 August 1st petition, the Town states, “… the records responsive to this request consist of approximately 156 pages across several documents contained with an extensive file stemming from a personnel investigation involving the Blackstone Police Department. Based on an initial review of the records, they appear to contain information regarding specific individuals, the disclosure of which could constitute an unwarranted invasion of privacy, and which therefore may be exempt from disclosure pursuant to exemption (c) of the Public Records Law.” The Town indicates that “[o]ther exemptions under G.L. c. 4, s. 7(26) may also be determined to apply to the records when they are reviewed in detail but were not apparent on initial review. Some of the issues set forth in the records involved matters that were or are in

Christopher L. Brown, Esq. SPR22/1769 Page 3 August 3, 2022 litigation or were the subject of labor proceedings. Accordingly, compiling responses to this request will require a careful review of and segregation of exempt information within the records by Town Counsel.” With respect to fees, the Town states, “[g]iven that counsel is more knowledgeable than other Town officials in the contents of the records and the applicable exemptions under the Public Records Law, and the sensitive information in the investigation file generally, only counsel can reasonably conduct the segregation and redaction of the responsive records, and would be doing so at significant cost to the Town. The Town therefore further petitions to allow the Town to charge Ms. Atstupenas fees in excess of the $25 per hour statutory maximum rate to respond to his requests. Specifically, the Town requests the following: For counsel’s review of potentially exempt records and segregation of exempt informatin from the response, the Town requests that the Supervisor allow the Town to charge the rate it will be charged by counsel for such review, $195 per hour. Based on an average review and redaction time of 1.5 minutes per page of the responsive records, the Town estimates approximately 4 hours of time to review and redact the approximately 156 pages of records responsive to Ms. Atstupenas’ request. Conclusion Given the public interest served by limiting the cost of public access to the requested records, I am unable to grant permission to charge for time spent segregating or redacting responsive records or to charge in excess of $25 an hour. Please note, this does not preclude the Town from charging for segregation and redaction that is required by law at $25.00 per hour. When preparing a fee estimate for the provision of the requested records the Town is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable. The Town must provide a response to Ms. Atstupenas within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Atstupenas may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Barbara Atstupenas Dori A. Vecchio