Larry Smith v. Bourne, Town of (SPR 20240990)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 8, 2024 SPR24/0990 Bryan Bertram, Esq. Town of Bourne 24 Perry Avenue Buzzards Bay, MA 02532 Dear Attorney Bertram: On April 1, 2024, I received the petition of Attorney Bryan Bertram, 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 March 18, 2024, Larry Smith requested: [1] an electronic copy of all town emails sent to or received from [various email addresses], or any other email that contains the word PADtrax, Zeus, Evidence Management, RFID, Audit, or C&A Associates, C&A, Stirm Group, SG, STIRM, forensic, accounting, or cash management. [2.] any secondary email addresses that the city may have assigned to [two named individuals], or anyone else who was determined to have referenced or mentioned PADtrax, RFID, Evidence, Audit, Inventory, Zeus, Cash Management, or forensic audit. I would also like a copy of the PADtrax and audit contracts. I would also like the payroll records of the personnel who assisted in the audit process. I want a copy of hourly and overtime rates for each of the named personnel for the dates June 6 through 10th, 2022, as well as a copy of their weekly payroll for those dates. Petitions 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, 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

Bryan Bertram, Esq. SPR24/0990 Page 2 April 8, 2024 § 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 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; 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 (two) 2 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).

Bryan Bertram, Esq. SPR24/0990 Page 3 April 8, 2024 Petition to Assess Fees In its petition, the Town states the following in support for permission to charge for time spent segregating or redacting responsive records: First, Town Counsel is involved in many of the communications in an advisory capacity that is very likely to implicate the attorney-client privilege… Second, the records may also contain information that is prohibited from release by Massachusetts General Laws. Emails involving the Police Department containing the identified terms may discuss information that is protected by M.G.L. c.6, §172, which limits the disclosure of criminal offender record information to those identified in the statute. Emails and payroll records may also contain identified individual’s social security numbers or driver’s license numbers, which are prohibited from disclosure under Massachusetts General Law, Chapter 93H. Emails involving the Police Department may also include other statutorily protected information ranging across many statutes that shield certain information collected or learned by Police Departments in the course of criminal investigations or prosecutions (e.g., G.L. c. 265, § 24C). Third, information in those communications may be shielded from disclosure by many other exemptions to disclosure under the Public Records Law, potentially including exemptions (b), (c), (n), and (o)… 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. Fee in Excess of $25.00 per Hour In its petition, the Town is seeking a waiver of statutory limits on fees and provides the following in support of its request: 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 and information protected under other state laws. An attorney’s review is necessary given the high sensitivity of police communications and records, which may be statutorily or otherwise protected from disclosure under a detailed and overlapping web of statutes, many of which may involve sensitive subject matters. 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. Although Town

Bryan Bertram, Esq. SPR24/0990 Page 4 April 8, 2024 Counsel will be performing this review, in whole or in part, the Town is only seeking permission to charge an hourly rate of $215. 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 assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). I find the Town may assess a fee limited to $75.00 per hour for attorney review. Conclusion As describe above, 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 Mr. Smith and the Town 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 Mr. Smith within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Smith may appeal the Town’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). Sincerely, Manza Arthur Supervisor of Records cc: Larry Smith Barry Johnson