Ashley Fogg v. Hopkinton, Town of (SPR 20240739)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 15, 2024 SPR24/0739 Connor B. Degan Town Clerk Town of Hopkinton 18 Main Street Hopkinton, MA 01748 Dear Mr. Degan: On March 11, 2024, this office received your petition on behalf of the Town of Hopkinton (Town) seeking permission to charge for time spent segregating and redacting responsive records. 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, Ashley Fogg. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 26, 2024, Ms. Fogg requested the following records: [1] All email correspondence between Town Hall officials, not limited to the town clerk, the town manager, and any assistants to the Hopkinton Democratic Town Committee (any of its officers or members for the years 2022-current)[;] [2] All email correspondence between Town Hall officials, not limited to the Town Clerk, the Town Manager, and any executive assistants to the Hopkinton School Committee members, whether it be to individual groups or the entire committee during the years 2022-current[;] [3] All email correspondence between the Hopkinton School Committee (entire committee and/or individual members) and the Hopkinton Democratic Town Committee (any of its officers or members) for the years 2022-current. 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). 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

Connor B. Degan SPR24/0739 Page 2 March 15, 2024 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). It is my understanding 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). 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).

Connor B. Degan SPR24/0739 Page 3 March 15, 2024 Petition to Assess Fees In its petition, the Town requests “permission to charge an hourly rate of $25” and provides the following in support of its request: [The Town] has identified approximately 24,000 emails that are potentially responsive to the request. … [T]he request seeks all emails between Town employees and members of the Hopkinton Democratic Town Committee. Members of the Committee use their personal email addresses, and possibly their personal phone numbers, for Committee business. These individuals have a right to privacy of this information and may not want such information released to the public. As such, certain information would likely fall within Exemption (c) to the Public Records Law. … [F]urther, members of the Committee may communicate with the Town in their personal capacity using the same emails. These communications may contain private information of private citizens that would have to be redacted. 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. … [A]dditionally, some of the emails may include information that is required by law to be redacted. Ms. Fogg has requested email correspondence between Town officials and Hopkinton School Committee members. These records may contain information that is protected under the Family Educational Rights and Privacy Act (FERPA) and implementing regulations. [T]his information may also be protected under Massachusetts law pertaining to student records… … [F]urther, where many of the requested documents are communications between Town employees, Town Counsel may be included on a number of the emails. Because the consequences of disclosing attorney-client privileged materials to a third party may include a broad waiver of the privilege, careful review of all potentially privileged documents is paramount. 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.

Connor B. Degan SPR24/0739 Page 4 March 15, 2024 Conclusion Accordingly, I find the Town has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the Town to provide records in an efficient and affordable manner. Please note, Ms. Fogg 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). Sincerely, Manza Arthur Supervisor of Records cc: Ashley Fogg