Itai Vardi v. Douglas, Town of - Town Administrator (SPR 20222820)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 21, 2022 SPR22/2820 Matthew J. Wojcik Town Administrator Town of Douglas 29 Depot Street Douglas, MA 01516 Dear Mr. Wojcik: I have received the petition of Itai Vardi, of the Energy and Policy Institute, appealing the response of the Town of Douglas (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 1, 2022, Mr. Vardi requested “[a]ny and all emails to and from (including CCs and BCCs) each of the following: [4 identified individuals] and any or all of the following 3 emails domains: [3 identified email domains.]” On November 4, 2022, Mr. Vardi modified his request and stated, “[a]s to [an identified company’s] emails, I am only interested in the ones relating to the proposed gas line extension and electrification[.]” On November 10, 2022, the Town responded. Unsatisfied with the Town’s response, Mr. Vardi petitioned this office and this appeal, SPR22/2820, was opened as a result. Fee estimate – municipalities 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 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

Matthew J. Wojcik SPR22/2820 Page 2 December 21, 2022 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). The Town’s November 10th Response In its November 10, 2022 response, the Town provided a fee estimate of $1,332.50. The Town asserts: Certain records or portions of records will be withheld by the Town under [Exemption (d) and the attorney-client privilege]. At present, we estimate that there are approximately 1,600 records that fall within your request that will have to be gathered, sorted, and reviewed under the provisions of the relevant exemptions before being released. At a processing rate of 30 records per hour, the lowest paid staff person able to review these documents, the executive assistant to the Board and Town Administrator, will take 53.3 hours to complete the task. Since Douglas is well under 20,000 residents, we are allowed to charge for all hours needed to complete our response. Since the staff person required for this assignment earns more than $25/hour, we will charge you the maximum $25 per hour for 53.3 hours, or approximately $1,332.50 for this work. After correspondence by email on November 4, 2022, you agreed that we should remove from your request any correspondence with [an identified company] regarding pole installations, service requests on electrical lines and streetlights, etc. You stated that you[r] focus is on the proposal to extend natural gas service from Uxbridge into Douglas, and the associated discussion of energy alternatives for the building development in progress on Gilboa Street. This refinement of your request is likely to remove a significant number of items from our good faith estimate and thus, we anticipate providing you with a refund for hours below that of our preliminary estimate. Current Appeal In his appeal, Mr. Vardi argues: [T]he Town’s fee estimate is not reasonable because it does not reflect the cost of processing the request in its current form. Moreover, because there is no indication that segregation or redaction is required by law—as documents I requested are emails between a government body and an outside party—and the

Matthew J. Wojcik SPR22/2820 Page 3 December 21, 2022 Town has not petitioned your office to charge for segregation and redaction fees, the fee proposed by the Town is excessive and impermissible under the law. Further, Mr. Vardi asserts: [T]he Town should not be allowed to charge for time spent segregating and redacting records because it is not required by law. The Town cites the deliberative process exemption and attorney-client privilege as the only reasons why documents may be redacted or withheld, and neither applies to records shared with third-party organizations except in rare circumstances….The utilities [two identified companies], and [an identified real estate company] are not government agencies and have not been hired as consultants, meaning that any memoranda or letters shared with those organizations are no longer protected by the deliberative process exemption….The [attorney-client] privilege has been waived here where the communications have been share with external organizations. Therefore, segregation and redaction are not required by the laws cited by the Town. Finally, even if the Town has petitioned the Supervisor for approval—which it did not—the petition should not have been approved….[T]he amount of the fee is not reasonable where the Town has not revised its estimate to reflect the narrowed version of the request. The estimated fee therefore does not represent an actual and good-faith representation by the Town to comply with my request, and the Town fails both prongs of the Supervisor’s test for allowing charges for segregation and redaction. Although the Town has estimated that the process of responding to the records request will take 53.3 hours of employee time, it is unclear how many hours each task, such as locating the records, reviewing the records, and segregating or redacting the records, will take. Further, it is unclear how many minutes per page it will take to segregate and/or redact the responsive records. Additionally, it appears the Town intends to assess a fee for redactions pursuant to Exemption (d). Under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). Where the Town has not submitted a petition under G. L. c. 66, § 10(d)(iv), the Town may not assess a fee for redactions under Exemption (d). Further, where the requestor has narrowed his request, it is unclear if the Town intends to provide a revised fee estimate limited to the modified request. I encourage the parties to communicate in order to facilitate producing records efficiently and affordably. G. L. c. 66, § l0(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality

Matthew J. Wojcik SPR22/2820 Page 4 December 21, 2022 shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Mr. Vardi with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Itai Vardi