Bruce Fried v. Georgetown, Town of - Town Clerk (SPR 20230939)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 19, 2023 SPR23/0939 Kerri Ann McManus Town Clerk Town of Georgetown 1 Library Street Georgetown, MA 01833 Dear Ms. McManus: I have received the petition of Bruce Fried appealing the response of the Town of Georgetown (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 19, 2023, Mr. Fried requested various correspondence between three named individuals, “in reference to the Conservation Commision referencing Payroll Fraud and the request for their person emails and phone records dating from October 2022 to present[.]” The Town provided a response on April 27, 2023. Unsatisfied with the response, Mr. Fried petitioned this office and this appeal, SPR23/0939, was opened as a result. 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 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

Kerri Ann McManus SPR23/0939 Page 2 May 19, 2023 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). The Town’s April 27th Fee Estimate In its April 27, 2023 response, the Town provided a fee estimate of $645.00 and itemized the estimate as follows: [1] E-mails: You have first requested all e-mails between specified individuals. The cost to have the Town's IT consultant perform that search is $595.00… The total current estimate for IT search time for e-mails is: $595.00 … [2] Town Counsel Privilege Review: Aside from the time necessary to retrieve the requested e-mails and hard-copy records, additional time will be necessary to segregate and, where appropriate, redact responsive e-mails and written correspondence for confidential communications between Town Counsel and Town Officials. Indeed, as matters related to any personnel matter or subsequent or ongoing investigation which Town Counsel may have provided confidential legal advice, each responsive connnunication likely will need to be reviewed to determine whether it is subject to redaction under the attorney-client privilege or other applicable exemptions to the Public Records Law. Town Counsel's hourly rate exceeds $25/hour. The total estimate for Town Counsel segregation and redaction is: $50. 00 (2 hr x 25/hr). [3] The total estimated fee for this request is $645.00. In an email dated May 9, 2023, in response to a modified request, the Town stated, “Boston Solutions System is keeping their good faith estimate of $540. We believe $25 for town counsel segregation and redaction may take only one hour, so we can reduce that to… $25. The total good faith estimate would be $565.” Current appeal In his appeal, Mr. Fried states, “I was provided a quote and subsequently reduced that request by half and was told that they are keeping the ‘Good Faith’ estimate the same.” Although the Town has estimated that the process of searching, reviewing and redacting the responsive records for production will take 22.6 hours of employee time, it is unclear how the Town requires this many hours to produce responsive records. It is additionally uncertain why it would take 22.6 hours to search for the responsive records. As such, the Town must provide additional information regarding the tasks involved in producing these records. Further, I find the Town must clarify if the redactions are required by law, and state the applicable statutes, if any. Pursuant to the Public Records Law, a fee may not be assessed for

Kerri Ann McManus SPR23/0939 Page 3 May 19, 2023 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). The Town must clarify. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed in its April 27th estimate is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Mr. Fried with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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: Bruce Fried