Tracey Stockton v. Marblehead, Town of (SPR 20242091)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 5, 2024 SPR24/2091 Kyle A. Wiley Records Access Officer Town of Marblehead Abbot Hall 188 Washington Street Marblehead, MA 01945 Dear Kyle A. Wiley: I have received the petition of Attorney Tracey M. A. Stockton appealing the response of the Town of Marblehead (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 18, 2024, Attorney Stockton requested 27 categories of records including, among other things, “documents and telephone records” for numerous individuals and specified addresses over calendar years ranging from 2013 to 2023. Previous Petition This request was the subject of a previous petition from the Town. See SPR24/0979 Determinations of the Supervisor of Records (April 5, 2024 and April 25, 2024). In my April 25th determination, I declined to reverse the previous determination, where I found that the Town had established good cause for a time extension of 30 business days, that the Town may assess a fee for segregation and redaction of the responsive records, and that the Town may assess a fee limited to $75.00 per hour for attorney review. Concurrent with its March 29, 2024 petition to this office, the Town responded to Attorney Stockton, providing a fee estimate. Objecting to the fees, Attorney Stockton petitioned this office, and this appeal, SPR24/2091, was opened as a result. In a letter to this office and Attorney Stockton on July 25, 2024, the Town provides additional information concerning its fee estimate. Further, in a letter to the Town and this office on July 25, 2024, Attorney Stockton reiterates the concerns stated in the appeal petition. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical 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

Kyle A. Wiley SPR24/2091 Page 2 August 5, 2024 form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be 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. 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 Appeal In the appeal petition, Attorney Stockton “request[s] the Supervisor of Records reject the request put forth by [the] Town of Marblehead, on March 29, 2024.” Additionally, subsequent to the opening of this appeal, in a letter to this office and the Town on July 27, 2024, Attorney Stockton request the following: [T]his is our formal request for a fee waiver in accordance with the provisions of G .L. c. 66 § 10(d)(iv). As [the Supervisor] may be aware, the Shrine of St.

Kyle A. Wiley SPR24/2091 Page 3 August 5, 2024 Nicholas has been adversely affected by the actions of the Town of Marblehead for a period now exceeding seven (7) years. 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 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. 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). The Town’s March 29th and June 24th Fee Estimates In its March 29, 2024 response, the Town provided a fee estimate totaling $700.00. Following further correspondence with Attorney Stockton, on June 24, 2024, the Town provided an updated fee estimate totaling $4,052.00. In its March 29th response, the Town provides the following information in support of its fee estimate: With respect to the 27 separate categories of documents sought, the Town estimates in good faith that identifying and segregating responsive records for production will take a minimum of 25 hours of time, at a total cost of $750.00. Discounting the first two hours of the time to search for responsive records, this comes to $700.00. This is provided as a preliminary estimate for the minimum amount of time that the Town will spend in determining what records exist, and may be updated once the Town begins preparing the responsive records. ... In addition, the scope of your request includes communications that may be protected by the attorney-client privilege. Once responsive records are identified, it is anticipated that further review and redaction of those records will be necessary to preserve the attorney-client privilege. There is no employee of the Town qualified to conduct such a review with a lower rate than this office, as Town Counsel. Our hourly rate is $210, which is above the ordinary maximum rate that can be charged under the Public Records law of $25 per hour.

Kyle A. Wiley SPR24/2091 Page 4 August 5, 2024 In its June 24th response, the Town further explains the following: In addition, the Town has sought to further identify the extent of records responsive to your request. ... [T]he only form of records that relate to your requests seeking phone records will involve the billing for those Town phone numbers. An initial review indicates that at least 778 separate invoices exist for those records, which will require at least 162.08 hours of time to retrieve, separate, and prepare for response. The updated estimate for production of the phone records you seek in your response will therefore be $4,052.00. Additionally, in a letter to this office and Attorney Stockton on July 25, 2024, the Town further explains the following: [T]he time to retrieve and produce, but not review or redact, responsive records would take an additional 162.08 hours for the estimated 778 responsive telephone billing invoices. This is simply the time to locate, produce, and prepare for production the 778 individual invoices that are responsive. Based on the Town’s responses, it is unclear whether the amount listed in the June 24th fee estimate is intended to take the place of, or in addition to, the amount listed in the Town’s March 29th fee estimate. Further, based on the Town’s responses, it is unclear why the Town requires the amounts of time described in its fee estimates to produce the responsive records. The Town must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, as noted above, the Town previously received approval to charge for segregation and redaction, and to assess fees limited to $75.00 per hour for attorney review. See SPR24/0979 Determination of the Supervisor of Records (April 5, 2024 and April 25, 2024). However, based on the Town’s fee estimates, it is unclear what hourly rate or rates the Town is charging for each of the tasks involved. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). In its responses, the Town suggests that Attorney Stockton narrow the scope of her request. This office encourages Attorney Stockton and the Town to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality 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 to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate.

Kyle A. Wiley SPR24/2091 Page 5 August 5, 2024 Conclusion Accordingly, the Town is ordered to provide Attorney Stockton with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this 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: Tracey M. A. Stockton, Esq.