Greyson James v. Milton, Town of - Town Administrator (SPR 20240827)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2024 SPR24/0827 Nicholas J. Milano Town Administrator Town of Milton 525 Canton Avenue Milton, MA 02186 Dear Mr. Milano: On March 18, 2024, this office received your petition on behalf of the Town of Milton (Town) seeking permission to charge for time spent segregating or 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, Greysen James. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 4, 2024, Mr. James requested “[a]ny and all email communications, including addressee(s) and any parties carbon copied or blind carbon copied, sent and received by . . . former Assistant Town Administrator and Human Resources Officer, including and between the dates of October 1, 2018 and October 1, 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). It is my understanding that this request was not made for a commercial purpose. 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

Nicholas J. Milano SPR24/0827 Page 2 March 26, 2024 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). Current Petition In its petition, the Town requests it be permitted to charge $25 per hour “to review all 291,120 emails and redact any information protected from disclosure by an Exemption to the Public Records Law, G. L. c. 4, § 7(26).” In support of its request, the Town provides the following information: [B]ased on the nature of the request, [we] anticipate withholding and/or redacting records potentially on the bases of each of the exemptions set forth under G. L. c. 4, § 7(26), and the attorney-client and work-product and other applicable privileges, among other potential exemptions or legal authority. …

Nicholas J. Milano SPR24/0827 Page 3 March 26, 2024 [A]s is self-evident, having to review every electronic communication sent or received over a five-year span by the former Assistant Town Administrator and Human Resources Officer, who of necessity routinely addresses highly sensitive matters of security, personnel information, privileged information, medical information protected from disclosure by statute and Exemption (a) of the Public Records Law, and other items and documents exempt from the definition of ‘public records’ under G. L. c. 4, § 7(26), would require untold hours of careful review of voluminous pages of records, including thousands of e-mails and attachments thereto, carrying with it obviously undue and impracticable administrative burdens and logistical constraints. Conclusion I find the Town has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Town from charging for segregation and redaction that is required by law. Further, this office encourages Mr. James 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 or agency 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 or agency 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. James within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. James may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Greysen James