Michael Curtin v. East Bridgewater Town Administrator (SPR 20242403)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 5, 2024 SPR24/2403 Charlie Seelig Town Administrator Town of East Bridgewater 175 Central Street East Bridgewater, MA 02333 Dear Mr. Seelig: I have received the petition of Michael Curtin, of the East Bridgewater Patrolman’s Association, appealing the response of the Town of East Bridgewater (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 8, 2024, Mr. Curtin requested “[a]ll invoices from Clifford & Kenny to the town of East Bridgewater for all work done in relation to contract negotiations with the East Bridgewater Police Association from September 2022 until now.” The Town responded on August 20, 2024, which included a fee estimate. Unsatisfied with the Town’s response, Mr. Curtin petitioned this office and this appeal, SPR24/2403, was opened as a result. 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 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. Att’y 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 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

Charlie Seelig SPR24/2403 Page 2 September 5, 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. Fee Estimates – Municipalities 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. 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s August 20th Fee Estimate In its August 20, 2024 fee estimate, the Town indicated that it “has yet to receive any invoices for July 2024” and stated the following: The Town will need to review each invoice in order to redact any information that falls under attorney-client privilege in regard to any personal information, current litigation, negotiation with unions, or other union matters such as grievances. . . . It will take approximately four hours of time at $25 per hour to retrieve the invoices and redact the confidential information from the invoices for a total cost of $100. Subsequent to the opening of this appeal, in an email to this office dated August 30, 2024, the Town stated the following:

Charlie Seelig SPR24/2403 Page 3 September 5, 2024 [1.] While the Town’s rights to attorney-client privilege may differ from those for private entities, those rights exist, and the Town has not waived those rights. [2.] The estimated fee is for the work in retrieving the documents and reviewing and redacting the documents, not for the cost of providing the actual copies (the Town agrees that these can be sent by email at no additional cost). [3.] The invoices requested by Mr. Curtin do include detailed information of the work done by Clifford & Kenny related to negotiations with the patrol officers, along with negotiations with other unions, and litigation involving the Town along with other matters... Some of these issues remain active and making those details public could potentially harm the Town’s position in negotiations with the patrol officers union as the negotiations have now moved to the Joint Labor- Management Commission. Details concerning other negotiations, litigation, and personal information would also be redacted. The Town would not redact information concerning the number of hours spent by Clifford & Kenny on patrol officer negotiations or the amount of money spent on those negotiations in each invoice. Current Appeal In his appeal petition, Mr. Curtin states, “I am filing this appeal based on the fact that these invoices would not fall under attorney client privilege as the town is a public entity. In addition the fee for the request seems to baseless [sic] as all these documents should be held in a digital form and can simply be emailed. Even if the town has an attorney client privilege invoices would not detail specific information.” Although the Town indicates in its fee estimate that the process of compiling, reviewing, and preparing requested records requires 4 hours, it is not clear from the Town’s estimate how much time is allocated to search, and how much time is allocated for segregation and/or redaction of the records. Additionally, it is unclear how many records there are, or the number or minutes that the Town must spend per page for redactions. The Town must provide additional information regarding the tasks involved in producing these records. Accordingly, the Town must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, although the Town states that it is assessing a $25 per hour rate, it is unclear whether the $25 per hour rate is that of the lowest-paid employee capable of performing the tasks necessary to produce the requested records, and whether the first two hours of employee time to search for, compile, segregate, redact or reproduce the records has been factored into the fee estimate. See G. L. c. 66, § 10(d)(iii). The Town must clarify this matter. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed in its August 20th estimate is consistent with G. L. c. 66, § 10(d). With regard to Mr. Curtin’s objections regarding the Town’s claims of attorney-client

Charlie Seelig SPR24/2403 Page 4 September 5, 2024 privilege, please be advised that where the Town has yet to produce the records, I find these matters cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, Mr. Curtin may appeal the substantive nature of the Town’s response within ninety calendar days. See 950 C.M.R. 32.08(1). I encourage Mr. Curtin and the Town to communicate further in order to facilitate producing records efficiently and affordably. Mr. Curtin may wish to narrow the parameters or include applicable factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Mr. Curtin with a response to his 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: Michael Curtin