Russell Williston v. Lancaster, Town of (SPR 20231091)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 31, 2023 SPR23/1091 Kathleen Rocco Records Access Officer Town of Lancaster 701 Main Street Lancaster, MA 01523 Dear Ms. Rocco: On May 23, 2023, this office received your petition on behalf of the Town of Lancaster (Town) requesting permission to charge for time spent segregating or redacting responsive records, as well as seeking a waiver of statutory limits on fees that may be assessed in responding to the request. 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 the petition to the requestor. G. L. c. 66, § 10(d)(iv). On May 22, 2023, Russ Williston requested copies of “emails received by [an identified Town Administrator and Select Board members] from 5/1/2023 through 5/21/2023.” Subsequent to the opening of this petition, Mr. Williston sent an email to this office on May 23, 2023 that addresses the Town’s petition. Mr. Williston states: Given that (1) the [T]own did not gather the data on responsive records that it claims to have, (2) a much larger request was handled with no fee in January, without the same concerns and that (3) it's not clear why such an in-depth review at such an extraordinary cost would be required, I request that the [T]own's petition be denied. It's reasonable to expect that this request be handled as the January request in (2) was -- without charge to the requestor. Petition to Assess Fees 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). 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

Kathleen Rocco SPR23/1091 Page 2 May 31, 2023 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. 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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 23rd petition, the Town states that it “has spent more than 45 minutes searching for responsive records. At this point, we have identified… a total of 194 emails. With duplicates

Kathleen Rocco SPR23/1091 Page 3 May 31, 2023 removed, there are 138 potentially responsive records.” The Town explains that “[a] preliminary review of the records responsive to Mr. Williston’s request reveals that Town Counsel is copied on some of these communications… Because the consequences of disclosing attorney-client privileged materials to a third party may include a broad waiver of the privilege, careful review of all potentially privileged documents is paramount.” The Town notes: 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 my office has collected the responsive records, an attorney will perform the review, segregation, and redactions necessary for production of the requested documents. An associate charges $215.00 per hour. For those emails and documents that do not involve Town Counsel, the lowest paid person capable of performing this review is the Town Administrator who is paid an hourly rate of $83.81. The Town Administrator 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 likely ask Town Counsel to perform the segregation or assist on certain records. Although Town Counsel will be performing this review, in whole or in part, the Town is only seeking permission to charge the hourly rate of the Town Administrator ($83.81) for review and redaction of the records. In its petition and in a footnote, the Town indicates that it will assess an additional fee of $45.13 per hour for the Town’s IT Director to access the Town’s webmail and compile the potentially responsive records. The Town states, “[a]s permitted by law, the Town may collect fees for the time needed to search for and pull the potentially responsive records from the files without the Supervisor’s permission.” Please note, 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). See G. L. c. 66, § -- 10(d)(iv). The Town further notes that in addition to segregation or redaction made under attorney-client privilege, “the [requested] information may fall within one of the below exemptions to the law:” • Exemption (a) … The Select Board reviews licensing applications that often include information protected from release by CORI or other statutory schemes. Such information will need to be reviewed and redacted. • Exemption (c) … Notably, medical and personnel information… are topics that the Select Board and the Town Administrator may discuss, especially as it pertains to employees.

Kathleen Rocco SPR23/1091 Page 4 May 31, 2023 • Exemption (d) … The Select Board and Town staff facilitate and develop policy positions. It may be possible that some emails are protected by this exemption, as well. • Exemption (o) … As the Select Board is the appointing authority for many public bodies, it is possible that the responsive records include [appointed employees’ personal telephone numbers, addresses, and email addresses.] • Exemption (n) … Town staff and Select Board members often discuss public safety issues. Such records would need to be reviewed. Conclusion I find the Town, in part, has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction, 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 only for attorney review. However, I find the Town has not met its burden to assess a fee of $83.81 per hour for review and redaction pursuant to the other exemptions mentioned in its petition. When preparing a fee estimate for the provision of the requested records, the Town 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 law. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Town must provide a response to Mr. Williston within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Williston may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Williston 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: Russ Williston