Andrew Kerr v. Attleboro, City of - City Clerk (SPR 20230859)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 5, 2023 SPR23/0859 Peter L. Mello, Esq. City Solicitor Murphy Hesse Toomey & Lehane, LLP 50 Braintree Office Hill Park, Suite 410 Braintree, MA 02184 Dear Attorney Mello: On May 1, 2023, this office received your petition on behalf of the City of Attleboro (City) 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 request. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On April 14, 2023, Andrew Kerr requested “any and all emails/text messages as well as any electronic communications from [six named individuals] [f]rom January 1st of 2022 until June 22nd of 2022.” 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. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not 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

Peter L. Mello, Esq. SPR23/0859 Page 2 May 5, 2023 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 May 1st petition, the City states:

Peter L. Mello, Esq. SPR23/0859 Page 3 May 5, 2023 As is self-evident, having to review every electronic communication sent or received by the City’s mayor, police chief, and other officials who of necessity routinely address highly sensitive matters of security, privileged information and other items and documents exempt from the definition of “public records” under G. L. c. 4, § 7(26), would require untold hours of careful review of voluminous pages of records, including thousands of e-mails and attachments thereto, carrying with it obviously undue and impracticable administrative burdens and logistical constraints…. Moreover, insofar as Mr. Kerr seeks the underlying records in connection with the Threatened Litigation against the City, any records to be produced in response to the Request, or any clarification or modification thereof, would require the undersigned City Solicitor’s careful review, segregation and redaction of privileged and other exempted records. It is well-established that the City is entitled to withhold such records from production, and the Supervisor has recognized that segregation and redaction for this purpose is “required by law” as that phrase is used in G.L. c. 66, § 10(d)(iii). See, e.g., Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 449-50 (2007) (recognizing the extension of the attorney-client privilege to confidential communications between governmental entities and their legal counsel)….Because the City Solicitor is the exclusive representative of the City appropriately equipped to complete such segregation and redaction, the Supervisor should allow the City to charge Mr. Kerr for such review, segregation and redaction time at the City Solicitor’s rate of $200 per hour. In this context the Supervisor also should allow the City to assess fees for its segregation and redaction of all records, whether performed by the City Solicitor or any other officials, particularly insofar as even non-privileged but otherwise exempt requested records largely or wholly relate to, and are inextricably intertwined with, the Threatened Litigation, and cannot be illogically disentangled for it to the City’s profound detriment and disadvantage. I find the City has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Further, I find that the City has met its burden to assess a fee in excess of $25.00 per hour to the extent the responsive records need to be redacted or segregated pursuant to the attorney-client privilege. See G. L. c. 66, § 10(d)(iv). However, this allowance is limited to $75.00 per hour for attorney review. Conclusion The City must provide a response to Mr. Kerr within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Kerr may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). When preparing a fee estimate for the provision of the requested records, the City 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

Peter L. Mello, Esq. SPR23/0859 Page 4 May 5, 2023 law. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). This office encourages Mr. Kerr and the City 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), l0A(c). Sincerely, Manza Arthur Supervisor of Records cc: Andrew Kerr Kathleen Jackson