Kevin O'Brien v. Dracut, Town of (SPR 20222547)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 16, 2022 SPR22/2547 Peter L. Mello, Esq. Town Counsel Murphy, Hesse, Toomey & Lehane, LLP 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Mello: I have received your petition on behalf of the Town of Dracut (Town) requesting 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 Town furnished a copy of this petition to the requestor, Kevin O’Brien. G. L. c. 66, § 10(d)(iv). On October 25, 2022, Mr. O’Brien requested: [1] All communication between Town Manager . . . and Town Counsel concerning my F.O.I.A. request on [a named individual][;] [2] All communication between Town Counsel and Police Chief concerning my F.O.I.A. request on [a named individual][;] [3] All communication between Town Counsel and Secretary of State concerning my F.O.I.A. request on [a named individual][;] [4] All communication between Town Manager . . . and Police Chief and Deputy Chief[;] [5] All communication between Chief Police and Deputy Chief concerning my F.O.I.A. request on [a named individual]. 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 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

Peter L. Mello, Esq. SPR22/2547 Page 2 November 16, 2022 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 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).

Peter L. Mello, Esq. SPR22/2547 Page 3 November 16, 2022 Current Petition In its November 8th petition, the Town states: Having initially responded to the Request via a timely correspondence transmitted on November 8, 2022, the Town hereby requests that the Supervisor issue an order allowing the Town to charge a $75 hourly fee for segregation and redaction of any responsive records, including without limitation any time spent segregating or logging such records as needed or directed by the Supervisor. On its face the Request seeks patently attorney-client privileged records that will need to be reviewed and segregated by counsel, including records of this office and potentially those exchanged with predecessor counsel with whom the undersigned counsel would need to coordinate. These tasks require attorney handling and therefore are appropriately billed at $75 per hour. Although the Town remains in the process of its search and compilation of any potentially responsive records, and subject to a full reservation of its right to modify its fee estimate based on additional and further review and information, including amount other things any further clarification from the requestor concerning the scope of the Request, currently we estimate incurring possibly approximately 5- 10 hours of such attorney segregation time, for a charge of $750 or more. Needless to say, this estimated segregation time could increase dramatically depending upon the requestor’s intended scope with respect to Request Nos. 4 and 5 above…. The Town is entitled to recover reasonable fees that it incurs in addressing the requestor’s inappropriate request for categorically privileged documents exchanged in connection with a pending administrative Supervisor of Records proceeding that the requestor himself commenced. Conclusion 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, 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 Town may assess a fee limited to $75.00 per hour for attorney review. Further, this office encourages Mr. O’Brien and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii). 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 the estimated amount of time is necessary and how the redactions are required by law. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Town must provide a response to Mr. O’Brien within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. O’Brien may appeal the Town’s fee estimate within ninety days. See 950

Peter L. Mello, Esq. SPR22/2547 Page 4 November 16, 2022 C.M.R. 32.08(1). Please note, the requestor 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), l0A(c). Sincerely, Manza Arthur Supervisor of Records cc: Kevin O’Brien Kathleen Graham