Meredith A. Fine, Esq. v. Ipswich, Town of (SPR 20231425)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 29, 2023 SPR23/1425 George A. Hall, Jr. Town Counsel Town of Ipswich Anderson & Kreiger, LLP 50 Milk Street, 21st Floor Boston, MA 02109 Dear Attorney Hall: On June 22, 2023, this office received your petition on behalf of the Town of Ipswich (Town) seeking a waiver of statutory limits on fees that may be assessed in responding to the requests. 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). On June 8, 2023, Meredith A. Fine, Esq., requested “public records that relate to the municipal police/fire station building proposed for 36 Linebrook Road/4 Pine Swamp Road (the [‘]Project[’]).” Petition to Assess Fees The 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the 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

George A. Hall, Jr. SPR23/1425 Page 2 June 29, 2023 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). 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). Petition to Assess Fees in Excess of $25.00 per Hour In its June 22, 2023 petition, the Town seeks to charge $100.00 per hour to segregate and redact records responsive to Attorney Fine’s request that are protected by the attorney-client privilege. In support of its petition, the Town states that “[g]iven the likelihood that counsel would have advised the Town on many aspects of the Project, the Town estimates that it would take 15 hours to segregate and redact its records to protect the attorney-client privilege.” The Town explains that the $100.00 hourly rate it seeks to segregate and redact the records requested “is less than one-half the minimum rate for a junior associate at Anderson & Kreiger.” The Town indicates that the responsive records concern “a controversial local matter, and the Town has concerns about the possibility of litigation. … The Town often seeks advice from counsel on such matters even when there is no anticipation of litigation. An attorney must review any potentially responsive records to ensure that the attorney-client privilege is not compromised, particularly on matters that involve or could involve litigation.” The Town further explains that “after the Town identifies and compiles the responsive records, counsel will be required to review each document. To adequately identify and protect privileged information, that review must be performed by a person familiar with Ipswich’s

George A. Hall, Jr. SPR23/1425 Page 3 June 29, 2023 privacy obligations and who is able to identify communications that seek or reflect legal advice, especially when direct communication with an attorney is not involved. That person must be an attorney.” Based on its petition, I find the Town has met its burden to assess a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). However, this allowance is limited to $75.00 per hour. Conclusion Accordingly, I find that to the extent the responsive records contain the exempt information described above, the Town may assess a fee limited to $75.00 per hour for attorney review. Further, this office encourages Attorney Fine and the Town continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii). The Town must provide an updated fee estimate to Attorney Fine within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Fine may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Attorney Fine 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: Meredith A. Fine, Esq. Stephen Crane Amy Akell