Susanne Macarelli v. Nahant, Town of - Town Clerk (SPR 20241876)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 12, 2024 SPR24/1876 Dianne M. Dunfee Town Clerk’s Office Town of Nahant 334 Nahant Road Nahant, MA 01908 Dear Ms. Dunfee: I have received the petition of Susanne Macarelli appealing the response of the Town of Nahant (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 10, 2024, Ms. Macarelli requested the following for the period of October 24, 2023 through June 10, 2024: [1.] … all Nahant resident emails and corresponding responses that reference the “Housing Production Plan” received and sent by: Current and Former Nahant Board of Selectmen… [2.] … all Nahant resident emails and corresponding responses that reference the “Housing Production Plan” received and sent by: Housing Production Plan Sub- Committee Chair… [3.] … all emails that reference the “Housing Production Plan’ sent between Nahant Town Adminsitrator… and [named individuals]. On June 14, 2024, Ms. Macarelli made a revised request and stated, “[m]y FOIA request can be reduced, as the only outstanding portion of my FOIA that needs to be satisfied is: All emails that reference the ‘Housing Production Plan’ sent between Nahant Town administrator… and [named individuals] [d]uring the time period of October 24, 2023 through June 10, 2024.” On June 28, 2024, the Town responded, providing a fee estimate. Unsatisfied with the Town’s response, Ms. Macarelli petitioned this office and this appeal, SPR24/1876, was opened as a result. Fee Estimates - Municipalities If there are any fees associated with a response a written, good faith estimate must be 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

Diane M. Dunfee SPR24/1876 Page 2 July 12, 2024 provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 how 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). The Town’s June 28th response In its June 28, 2024 response, the Town provided a fee estimate of $775.00 and stated the following: [T]he records [Ms. Macarelli] seek[s] may need to be redacted, for several reasons. First, responsive records may contain the content of discussions between the Town and its attorneys for the purpose of obtaining legal advice. If these records were not shared with the public they are protected by the attorney-client privilege. The Guide to the Massachusetts Public Records Law states that “[s]egregation and redaction under the attorney-client privilege has also been found to be ‘require [sic] by law.’” Accordingly, the records will need to be reviewed to determine if they contain information protected by the attorney-client privilege. Responsive documents may also be redacted to protect the reasonable expectation of privacy of private citizens. This includes unpublished personal e-mail addresses and cell phone numbers. As such, the Town will need to redact this information from any responsive documents. The Town will petition the Office of the Secretary of State to charge a fee to perform this redaction. … Nahant’s population is 3,488. In this case, the lowest paid employee who has the necessary skill required to search, compile, segregate, redact or reproduce the

Diane M. Dunfee SPR24/1876 Page 3 July 12, 2024 record requested is a salaried employee whose effective hourly rate exceeds $25 per hour. Notwithstanding that rate, a rate of $25 per hour will be used to calculate the following fee estimate. Search Time is the time needed to locate and identify, pull from the files, copy and re-shelve or refile a public record. In this case, the Town estimates that it will take approximately thirty (30) seconds per email to determine whether it is responsive. Furthermore, the Town has already spent 1 hour time searching for the records. As a result, the Town estimates a total of 7 hours for search of the records. Each page of the records you seek must also be reviewed to determine if any exemptions or privileges apply. Segregation time includes the time used to review records to determine what portions are subject to redaction or withholding under G. L. c. 4, § 7(26) or other legally applicable privileges. Redaction time includes the time to delete, or otherwise remove that part of a public record that is exempt from disclosure under G. L. c. 4, § 7(26) or other legally applicable privileges from non-exempt material. The Town estimates it will take approximately 2 minutes per page to complete its segregation, and potential redaction of the records sought in your request. As a result, the Town estimates a total of 24 hours for segregation and redaction. This is a conservative estimate as we are assuming that some of the emails may not need to be redacted or may be duplicates. Seven (7) hours for search plus twenty-four (24) hours for segregation and redaction is a total of thirty-one (31) hours. Thirty-one (31) hours multiplied by $25 per hour yields a fee estimate of $775.00. The actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process. The Town will not begin to review the records you seek until it receives a check in the amount of $775.00. Current Appeal In her appeal, Ms. Macarelli states, “[i]t took 13 business days since I filed a FOIA on June 11, 2024, for the Town Clerk to include a good faith estimate of any cost of providing the record… Fees for this request should be waived because disclosure of these emails is in the public interest…” Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public

Diane M. Dunfee SPR24/1876 Page 4 July 12, 2024 understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. G. L. c. 66, § 10(d)(v). Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Additionally, the Town’s fee estimate response is timely, because Ms. Macarelli sent the revised request to the Town on June 14, 2024. Where the tenth business day to provide a response was July 1, 2024, and the Town provided a response on June 28, 2024, I find the Town may assess a fee for this records request. Reasonableness of the fee estimate Where the Town provided a response within 10 business, it is necessary to review the reasonableness of the Town’s fee estimate. Although the Town states that it would take 2 minutes per page to segregate and redact the records, it is unclear how many records there are, and why the Town requires this much time per page for segregation and redaction. It is additionally uncertain why it would take 7 hours to search for the responsive records. The Town must provide additional information regarding the tasks involved in the search for the email records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). In the Town’s response, it appears it is assessing a fee for redactions under the attorney- client privilege. However, the Town also stated, “[r]esponsive documents may also be redacted to protect the reasonable expectation of privacy of private citizens. This includes unpublished personal e-mail addresses and cell phone numbers[.]” Based on the foregoing, it is not clear if the Town intends to assess a fee for segregation or redaction under other exemptions to the Public Records Law. Pursuant to the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). Consequently, the Town must clarify whether its fee estimate includes time for segregation or redaction not required by law. Conclusion Accordingly, the Town is ordered to provide Ms. Macarelli with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this

Diane M. Dunfee SPR24/1876 Page 5 July 12, 2024 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Susanne Macarelli