Robert Lavallee v. Templeton, Town of - Town Administrator (SPR 20230459)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 15, 2023 SPR23/0459 Adam Lamontagne Town Administrator Town of Templeton 160 Patriots Road, P. O. Box 620 East Templeton, MA 01438 Dear Mr. Lamontagne: On March 8, 2023, this office received your petition on behalf of the Town of Templeton (Town) seeking an extension of time to produce records, and a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 24, 2023, Robert Lavallee requested three categories of records relating to specific businesses, specific addresses, and abatements. Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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

Adam Lamontagne SPR23/0459 Page 2 March 15, 2023 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Request for Additional Time to Produce Responsive Records In its petition, the Town “requests, a 5-day extension to respond to Mr. Lavallee’s public records request from the date of payment for a total response timeline of 30 business days from receipt of payment.” The Town provides the following information in support of its request: The Town has spent approximately 7 hours searching for responsive records. At this point, [the Town has] identified at least 200 pages containing a substantial number of printed emails that are potentially responsive to this request. The Town has not completed its review and additional responsive records likely exist. Additionally, the Town states that “a preliminary review of the records responsive to Mr. Lavallee’s request reveals that Town Counsel is involved in many of the communications in an advisory capacity that is very likely to implicate the attorney-client privilege.” Further, the Town explains that “the request seeks information relative to an individual’s abatement application, which are protected, at least in part, pursuant to G. L. c.59, §60.” The Town goes on to explain that “it is also possible that notes, emails, and other documents responsive to this request contain individual’s social security number or other statutory protected information.” The Town also states the following: The Town’s capacity to search for and collect the requested records within 25 business days of payment is limited by the fact that the records are requested from multiple Town boards and officials, necessitating an extensive search and coordination effort. Moreover, the Select Board members balance full time jobs with their Select Board duties. After records are collected, the records will require careful review for attorney-client privilege and other exemptions from the requirements of the Public Records Law, as described above. Based on the Town’s petition, I find that in light of the need to search for, collect, segregate and examine the records, the scope of redaction required to prevent unlawful disclosure, the capacity of the Town to produce the request without the extension, and

Adam Lamontagne SPR23/0459 Page 3 March 15, 2023 efforts undertaken by the Town in fulfilling the current request, the Town has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The Town is granted an extension of 5 business days. Petition to Assess Fees – Municipalities The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (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).

Adam Lamontagne SPR23/0459 Page 4 March 15, 2023 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). Fee in Excess of $25.00 per Hour In its petition, the Town states the following concerning its request to charge a fee in excess of $25.00 per hour: An associate attorney in the Town Counsel’s office is the lowest paid employee with the requisite knowledge for reviewing documents for the attorney-client privilege. After [Town Counsel’s] office has collected the responsive records, an attorney will perform the review, segregation, and redactions necessary for production of the requested documents. Town Counsel has agreed to reduce its hourly rate for an associate attorney from $185 per hour to $150 per hour to perform this review. Therefore, [the Town] request[s] permission to charge $150 per hour. For those emails and documents that do not involve the Town’s legal counsel, the lowest paid person capable of performing this review is the Town Deputy Assessor who is paid an hourly rate of $31.64. The Deputy Assessor is authorized to review the protected records and has sufficient knowledge of the laws governing access to these records. That said, given that Town Counsel will already be conducting the review of the documents, the Town will ask Town Counsel to perform the segregation. . . . The requestor will be assessed the approved hourly rate for Town Counsel’s time to review those records only [involving Town Counsel or other legal counsel]. For all other records not involving Town Counsel, the Town will charge the requestor at the hourly rate of the Deputy Assessor. 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 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 per hour for attorney review. In addition, the Town may charge the Deputy Assessor’s hourly rate of $31.64 per hour for the other tasks as described above. Conclusion Accordingly, I find the Town has established good cause for a time extension of 5 business days as described above. Further, as described above, the Town may assess a fee limited to $75 per hour for attorney review, and $31.64 per hour for the Deputy Assessor’s review.

Adam Lamontagne SPR23/0459 Page 5 March 15, 2023 This office encourages Mr. Lavallee and the Town to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Any subsequent fee estimate from the Town must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Lavallee 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Robert Lavallee