bbc45130lls . v. Bourne, Town of - Office of the Town Clerk (SPR 20232619)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 7, 2023 SPR23/2619 Barry H. Johnson Town Clerk Town of Bourne 24 Perry Avenue Buzzards Bay, MA 02532 Dear Mr. Johnson: On October 31, 2023, this office received your petition on behalf of the Town of Bourne (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 October 17, 2023, an anonymous requestor sought, “[a]ll emails and texts originated or received by the Building Commissioner from April 1, 2023 through present,” and “[a]ny and all complaints filed against Building Commissioner during their period of employment…” 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

Barry H. Johnson SPR23/2619 Page 2 November 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). Current Petition In its October 31st petition, the City argues the following in support of its request to charge for segregation and redaction under Exemption (c): [T]he request seeks all emails and text messages to and from the Building Commissioner. As such, the information may fall within Exemption (c) to the Public Records Law. The records may contain personnel information and other personal information pertaining to employees or private citizens. This information can be withheld and redacted under Exemption (c) because the public interest in the disclosure of such information does not outweigh the privacy interests… The correspondences will need to be reviewed for such information.

Barry H. Johnson SPR23/2619 Page 3 November 7, 2023 Additionally, the City states the following in support of a waiver of statutory limits on fees: An associate attorney in the Town Counsel’s office is the lowest paid employee with the requisite knowledge for reviewing documents for the attorney-client privilege. After my office has collected the responsive records, an attorney will perform the review, segregation, and redactions necessary for production of the requested documents. An associate charges $215.00 per hour. For those emails and documents that do not involve Town Counsel, the lowest paid person capable of performing this review is the Building Commissioner’s secretary . . . who is paid an hourly rate of $26. [Named individual] is authorized to review the protected records and has sufficient knowledge of the laws governing access to these records. That said, given that Town Counsel will already be conducting the review of the documents, the Town will likely ask Town Counsel to perform the segregation or assist on certain records. Although Town Counsel will be performing this review, in whole or in part, the Town is only seeking permission to charge the hourly rate of [a named individual] ($26.00). Conclusion I find the City 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 City may charge the City employee’s hourly rate of $26.00 per hour for the detailed tasks. G. L. c. 66, § 10(d)(iii). Further, this office encourages the requestor and the City 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 City 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 City must provide a response to the requestor within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). The requestor may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). 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), l0A(c).

Barry H. Johnson SPR23/2619 Page 4 November 7, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Anonymous Requestor