Alexander Neary v. Brookline, Town of - Town Counsel (SPR 20232545)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 31, 2023 SPR23/2545 Ben Kaufman Town Clerk Town of Brookline 333 Washington Street First Floor, Room 104 Brookline, MA 02445 Dear Mr. Kaufman: On October 24, 2023, this office received your petition on behalf of the Town of Brookline (Town) requesting permission to charge for time spent segregating or redacting responsive records and a waiver of statutory limits on fees that may be assessed in responding to the request. 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, it is my understanding that the Town furnished a copy of the petition to the requestor, Alexander Neary. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 10, 2023, Mr. Neary requested the following records for the timeframe July 20, 2021 to present: [1] All communications, including but not limited to email communications and text messages, sent or received by any staff person, employee, or town official regarding [an identified address][;] [2] All communications, including but not limited to email communications and text messages, sent or received by any staff person, employee, or town official that include the keyword . . .[;] [3] All communications, including but not limited to email communications and text messages, sent or received by any staff person, employee, or town official that include the keyword . . .[.] In an email dated October 26, 2023, Mr. Neary provided opposition to the Town’s petition seeking to charge $44,000 in fees for access to records it took 2 hours to find and which are otherwise available for inspection. 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

Ben Kaufman SPR23/2545 Page 2 October 31, 2023 Petition to assess fees – Municipalities 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). 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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).

Ben Kaufman SPR23/2545 Page 3 October 31, 2023 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 petition, the Town requests permission to assess an hourly rate of $40.00 per hour “for compiling, segregating, redacting and reproducing a requested record and charge for time spent segregating or redacting records.” In support of its request to charge for time spent segregating and redacting records, the Town provides the following information: [The Town] discovered 3,029 emails responsive to your request. These more than 3,000 emails and their attachments are 2.77 GB in size. Based upon our experience, files this size include more than 44,000 pages, assuming 66kb per page. … Portions of such records responsive to your request would be exempt from public disclosure under the Public Records Law, G. L. c. 66, and 950 C.M.R. 32.00 (“PRL”), under exemption (c), the privacy exemption, and the attorney-client privilege. … Exemption (c)…[The Town] must review the responsive documents to ensure the documents do not include any “personal identifying information” of private individuals… … One of the keywords you requested is the last name of a private individual…who filed a complaint with the Town against you when you ran as a candidate for Town Meeting member. Therefore, the exemption for attorney-client communications would also apply because such information may be treated as “privileged” and therefore, protected from disclosure under the PRL. … [The Town] estimates that Town Staff would need at least 1,100 hours of time to review and segregate the documents for responsiveness and segregation for the responsive documents. 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.

Ben Kaufman SPR23/2545 Page 4 October 31, 2023 Fee in Excess of $25.00 per Hour In its petition, the Town also requests to “…waive statutory limits to fees and seek to charge a fee of $40.00 per hour.” The Town provides the following argument: That amount [$40.00 per hour] is not “greater than the lowest hourly rate of a person capable of compiling, segregating, redacting and reproducing a requested record.” [The Town] does not have an employee with such necessary skill who is paid less than $25.00 per hour. Although we intend to seek an hourly rate of $40 per hour, which would make the estimate more than $44,000. In light of the above, it is unclear how the request could not be prudently completed without a fee in excess of $25.00 per hour. Consequently, the Town has not met its burden to demonstrate why it must charge in excess of the statutory limit of $25.00 per hour in responding to the request made by Mr. Neary. Conclusion Accordingly, as described above, the Town may assess a fee for segregation and redaction. However, I find that the Town has not met its burden to assess fees in excess of $25.00. Further, his office encourages Mr. Neary 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.) 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. 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. Neary within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Mr. Neary 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).

Ben Kaufman SPR23/2545 Page 5 October 31, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Alexander Neary Kerry Fleming, Esq. Joe Callanan, Esq.