Celeste Hedequist v. Wellesley, Town of - Town Clerk (SPR 20231835)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 15, 2023 SPR23/1835 K.C. Kato Town Clerk Town of Wellesley 888 Worcester Street, Suite 140 Wellesley, MA 02482 Dear Ms. Kato: On August 8, 2023, this office received your petition on behalf of the Town of Wellesley (Town) requesting permission to charge for time spent segregating and redacting responsive records under G. L. 66, § 10(d)(iv). See 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. 66, § 10(d)(iv). On July 28, 2023, Celeste Hedequist requested: Emails between: [1] [Two named individuals] between April 2016-present; [2] [A named individual] and [two named individuals] of the Wellesley Republican Town Committee between April 2016-present; [3] [Two named individuals] between November 2016-December 2018; [4] [Two named individuals] between November 2016-December 2018; and [5] [Two named individuals] between November 2016-December 2018. In an email dated August 8, 2023, Ms. Hedequist stated, “[t]here is nothing in this petition that suggests any reason for any protection whatsoever of the documents identified. The town simply wishes not to produce them. The Town has the ability to redact if necessary but this is not an excuse to withhold public records.” 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 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

K.C. Kato SPR23/1835 Page 2 August 15, 2023 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). 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). Current Petition In its August 8th petition, the Town states the following:

K.C. Kato SPR23/1835 Page 3 August 15, 2023 It is also likely that these records include information protected from release under Exemption (f) of the Public Records Law. Exemption (f) protects investigatory materials compiled by law enforcement or other investigatory officials, the disclosure of which materials would prejudice the possibility of effective law enforcement, including voluntary witness statements and identities. Therefore, the Police Department will need to review the relevant records to determine whether this exemption applies. Additionally, it is also likely that these records could include information protected from release under one of the other exemptions to the Public Records Law, such as Exemption (c), . . . [t]he responsive records may contain medical or other information pertaining to students that would be exempt from disclosure. The essential fact here is not that these exemptions apply, but rather, that each of these records must be reviewed to determine whether FERPA—which, by law would require a redacting or withholding the record—or anther exemption to the Public Records Law, as described above, permits withholding or redacting such emails. The Town cannot merely provide Ms. Hedequist with all of the potentially responsive records. The Town must perform this necessary review. In light of 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 redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for the segregation and redaction of such exempt material. This office encourages Ms. Hedequist and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Conclusion 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 redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for the segregation and redaction of such exempt material. Please note, Ms. Hedequist 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); G. L. c. 66, § 10A(c).

K.C. Kato SPR23/1835 Page 4 August 15, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Celeste Hedequist