Michael Sacco, Esq. v. Worcester Regional Retirement System (SPR 20231869)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 18, 2023 SPR23/1869 Rachel Grimaldi Executive Director Worcester Regional Retirement System 23 Midstate Drive, Suite 106 Auburn, MA 01501 Dear Ms. Grimaldi: On August 11, 2023, I received the petition of Kier Wachterhauser, Esq., of Murphy, Hesse, Toomey & Lehane, LLP, on behalf of the Worcester Regional Retirement System (Retirement System/Board) requesting permission to charge for time spent segregating or redacting responsive record, as well as a waiver of statutory limits on fees that may be assessed in responding to the request. See G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Retirement System furnished a copy of this petition to the requestor. G. L. 66, § 10(d)(iv). On July 28, 2023, Michael Sacco, Esq., of The Law Offices of Michael Sacco, P.C., requested: [1] Any and all documents pertaining to compensation paid to the WRRB Chairman, including but not limited to any Board meeting minutes reflecting any discussion and vote pertaining to the compensation paid to the Chairman, for the period of January 1, 2020, to the present; [2] A copy of [an identified individual’s] executed First Amendment to Employment Agreement, and documents pertaining to any indemnification paid to him pursuant to Section 6 of the Employment Agreement, as amended; [3] Any and all email and text communications exclusively by and between [two identified individuals], whether to [an identified emails address] or to him directly at his WRRB email address, for the period of June 1, 2019, to March 9, 2023; [4] Any and all documents pertaining to the purchase of a cell phone, tablet, computer, laptop or any other device for [an identified individual], including Board meeting minutes in which said purchase was discussed and approved; [5] Any and all documents pertaining to reimbursement to [an identified individual] for expenses incurred from January 1, 2020, to the present; 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

Rachel Grimaldi SPR23/1869 Page 2 August 18, 2023 [6] Any and all communications by and between two (2) or more Board members, including but not limited to, text and email messages, utilizing both personal and WRRB email addresses and/or cell phones; [7] Any and all communications by and between any Board member and Board staff that reference or discuss [an identified individual] on which [this identified individual] was not copied; [8] Any and all documents that reference or discuss [an identified individual] on which [this identified individual] was neither copied nor sent directly, including emails and/or text messages sent or received from third parties, excluding documents that bear [this identified individual’s] electronic signature which were sent to members, retirees and/or member unit officials and/or employees; [9] Any and all complaints the WRRB received alleging [an identified individual] was not performing his duties or alleging any wrongdoing on [this identified individual’s] part; [10] Any and all drafts of [an identified individual’s] WRRB contract/ employment agreement; [11] Any and all Board meeting minutes in which [an identified individual] was discussed, including executive session minutes; [12] Board meeting minutes, whether approved or in draft form, or any handwritten notes from the meeting, that authorized the recent public records request sent to Massachusetts retirement boards; [13] Any and all Board meeting minutes which discuss the advertising, hiring and/or recruiting for the CEO position (this request only pertains to the period of June 1, 2019, through December 31, 2019)[.] In a letter to this office dated August 14, 2023, Attorney Sacco objected to the fee petition. 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).

Rachel Grimaldi SPR23/1869 Page 3 August 18, 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 An agency 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). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies 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. 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)(ii); 950 C.M.R. 32.06(4). Current Petition In its August 11th petition, the Retirement System states the following: Particularly insofar as Mr. Sacco has conveyed the Request in the midst of what he describes as “acrimony” between himself and the [Retirement System], and particularly where Mr. Sacco is the former legal counsel of record to the [Retirement System] and seeks documents necessarily and likely subject to the attorney-client privilege or other applicable privilege or exemption, which privilege or privileges the [Retirement System] has not waived in any capacity, the [Retirement System’s] response to the Request of necessity would invoke the need for legal review, segregation, and redaction to ensure the protection of privileged and otherwise exempt documents…. The [Retirement System] merely seeks to assess the actual cost of a wholly reasonable charge necessary to complete its due diligence, and necessary legal

Rachel Grimaldi SPR23/1869 Page 4 August 18, 2023 review given the content of the Request. In its current form the Request would encompass tens of thousands of pages of records from dozens of sources and devices, the assembly and review of which would consume hundreds and hundreds of hours of diligent coordination and resources among numerous [Retirement System] employees, [Retirement System] board members, or representatives. Forcing the [Retirement Board] to complete this labor-intensive and sensitive process at a fraction of the reasonable cost therefor, would accrue unfairly to the [Retirement System] (and public’s) profound fiscal and administrative detriment. Accordingly, the [Retirement System] hereby requests that the Supervisor of Records allow the instant fee petition and authorize the [Retirement System] to charge time spent segregating and redacting in excess of $25 per hour where attorney time is necessary, namely at the billing rate of $215 per hour for such time. Conclusion Because agencies may not be granted permission to charge more than $25 an hour when responding to public records requests, I decline to opine on the Retirement System’s petition to charge in excess of $25 per hour. See G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(ii) provides: [I]f an agency is required to devote more than 4 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested, the records access officer may also 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 (A) shall not be more than $25 per hour; (B) shall not be assessed for the first 4 hours of work performed; and (C) 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 clause (iv)[.] G. L. c. 66, § 10(d)(ii). In addition, based on the Retirement System’s petition, I find the Retirement System has not 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). Please note, however, this does not preclude the Retirement System from charging for segregation and redaction that is required by law. This office encourages the parties to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the

Rachel Grimaldi SPR23/1869 Page 5 August 18, 2023 request if doing so would enable the municipality to produce records sought more efficiently and affordably). 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); G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Michael Sacco, Esq. Kier Wachterhauser, Esq.