Joe Siegel v. Seekonk Town Administrator (SPR 20230206)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 9, 2023 SPR23/0206 Shawn E. Cadime Town Administrator Town of Seekonk 100 Peck Street Seekonk, MA 02771 Dear Mr. Cadime: On February 2, 2023, this Office received your petition on behalf of the Town of Seekonk (Town) seeking 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. G. L. c. 66, § 10(d)(iv). On January 19, 2023, Joe Siegel requested “all e-mail correspondence between the Town Administrator and Police Chief…for the period of October 5, 2022 through January 5, 2023.” Additionally, on January 23, 2023, Mr. Siegel requested “e-mails concerning Police Chief…which were exchanged between the Town Administrator and [the Chair of the Select Board] for the period of December 5, 2022 through January 15, 2023.” 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 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. 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

Shawn E. Cadime SPR23/0206 Page 2 February 9, 2023 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). Current Petition In its petition dated February 1, 2023, the Town asserts: Notably, the Town anticipates that several of the requested records will relate to the recent administrative leave and subsequent termination of the Police Chief, matters for which Town Counsel has been extensively involved relating to the attorney-client relationship, as well as other potential confidential matters related to the former Police Chief’s privacy interest under Exemption (c) to the Public

Shawn E. Cadime SPR23/0206 Page 3 February 9, 2023 Records Law, for which Town Counsel must review and undertake the requisite balancing analysis as pursuant to People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). Without an adjustment in the statutory rate, the Town will incur significant financial cost if it is required to pay its attorney the full rate of $220.00/hour to respond to this request which implicates confidential matters. As grounds for this Petition, therefore, the Town states that there is good cause for permitting the Town to charge the below cost estimate because Town Counsel is the lowest paid employee capable of reviewing all such records for necessary redactions for attorney-client privilege, attorney-client work product, and other related legal and policy considerations…. Additionally, here, the cost estimate has been reduced from the “actual cost” of responding to the request, as Town Counsel’s rate is $220.00/hour but has been reduced to $75.00/hour for purposes of demonstrating that the fee estimate is made in good faith and in an attempt to be reasonable, and is not designed to limit, deter, or otherwise prevent any access to the non-exempt or confidential records, but rather, to partially compensate the Town for the actual costs of complying with the requests. Alternatively, the only other person other than Town Counsel who may be capable of reviewing such records to determine the scope of appropriate exemptions, privileged communications, and privacy interests utilizing the requisite balancing test is the Town Administrator, the subject of both requests. The Town Administrator’s hourly rate is $108.68/hour, which also well exceeds the $25/hour requirement. Again, the Town is willing to reduce any such rate to $75.00/hour in the public’s interest and as a showing of good faith that the petition is by no means meant to deter or discourage the provision of requested records. Therefore, the Town respectfully requests that the statutory cap on fees for search, compilation, redaction, and reproduction time be waived, and that the Town be authorized to assess fees for this work at the rate of $75.00/hour, as detailed in its initial response and fee estimate. Conclusion I find the Town has met its burden to explain how the response could not be prudently completed without redaction or 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. This office encourages Mr. Siegel and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). 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),

Shawn E. Cadime SPR23/0206 Page 4 February 9, 2023 l0A(c). Sincerely, Manza Arthur Supervisor of Records cc: Joe Siegel