Mariana Korsunsky v. Wayland, Town of (SPR 20232084)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 7, 2023 SPR23/2084 Trudy L. Reid Town Clerk Records Access Officer Town of Wayland 41 Cochituate Road Wayland, MA 01778 Dear Ms. Reid: On August 31, 2023, this office received your petition on behalf of the Town of Wayland (Town) seeking permission to charge for time spent segregating or redacting responsive records, as well as a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On August 17, 2023, Mariana Korsunsky requested multiple records regarding “Mill Creek’s proposed residential project at [a specified address].” 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). 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 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

Trudy L. Reid SPR23/2084 Page 2 September 7, 2023 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 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). Request to Charge for Time Spent Segregating or Redacting Responsive Records The Town’s August 31st petition states: By way of background, the requestor here has submitted a multi-part request for public records, requesting “[a]ll documentary materials, papers, emails, text messages, social media posts, notes, memoranda, letters or other public records that memorialize, constitute, reflect or refer to any communications” by, between, or among any municipal person or entity relative to a G.L. c.40B project that the requestor serves as legal counsel to. Notably, the Town anticipates that many of the requested records relates to legal matters for which Town Counsel has been extensively involved. Without an adjustment in the statutory rate, the Town will incur significant financial cost if it is required to pay its attorney the full rate of $230.00/hour to respond to this request which implicates privileged matters.

Trudy L. Reid SPR23/2084 Page 3 September 7, 2023 The Town asserts that: … there is good cause for permitting the Town to charge … because Town Counsel is the lowest paid employee capable of reviewing all such records for communications protected by the attorney-client privilege. Accord SPR 22/2793 (approving fee estimate where attorney was only employee “with the necessary skill to determine whether the attorney-client privilege requires certain portions of the records … to be redacted” and “whether other exemptions apply”). Additionally, here, the cost estimate has been reduced from the “actual cost” of responding to the request, as Town Counsel’s rate is $230.00/hour but has been reduced to $75.00/hour for purposes of demonstrating that the fee estimate is made in good faith and in an attempt to be reasonable, and is not designed to limit, deter, or otherwise prevent any access to the non-exempt or confidential records, but rather, to partially compensate the Town for the actual costs of complying with the request. 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, 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 for attorney review. Further, this office encourages Ms. Korsunsky and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii). 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 Ms. Korsunsky within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Korsunsky may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Ms. Korsunsky 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: Mariana Korsunsky