Kieran Altieri v. Boston, City of - Public Records (SPR 20242716)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 7, 2024 SPR24/2716 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: On September 30, 2024, this office received your petition on behalf of the City of Boston (City) seeking a waiver of statutory limits to fees that may be assessed in responding to the request. 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 City furnished a copy of the petition to the requestor, Attorney Kieran G. Altieri, of Altieri Law & Consulting. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 13, 2024, Attorney Altieri requested the following records: [1] [T]he documents returned as a result of the searches [you] described to [me] on August 21, 2024 in connection with City of Boston PR Request #s R002241- 060324, R002716-070324, R003231-080924[;] [2] Any documents returned from an additional email search, in particular documents to and from the domains...in the period November 1, 2022 to the present...[.] 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 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

Shawn A. Williams, Esq. SPR24/2716 Page 2 October 7, 2024 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. 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 City requests “permission to charge fees in excess of $25 per hour for the City’s time spent compiling, redacting, and segregating records responsive to City of Boston public records request R003728-091324...,” and provides the following information:

Shawn A. Williams, Esq. SPR24/2716 Page 3 October 7, 2024 [The City] searched its electronic databases to identify potentially responsive records. After deduplication, this search yielded 5,407 potentially responsive records. These records contain information that must be redacted or withheld as a matter of law. Specifically, there are records that contain attorney-client privileged communications. In addition to this, the remaining documents may include City discussions of legal advice provide by City attorneys. As such, all records must be reviewed before release to determine which are subject to this privilege. ... [R]eview of attorney-client privileged records must be conducted by an attorney with the skill to analyze and review such records. This task is not compatible with the experience and skills of non-attorney City personnel, as they would not be able to identify City employees discussing legal advice received from City attorneys. The City is therefore submitting a petition to the Supervisor of Records to grant the City the ability to charge an hourly rate of $76.27 per hour. ... [T]o the second factor, this review calls for records that implicate ongoing litigation. The requester is an attorney representing the plaintiffs in this litigation. As explained in the City’s letter to the requester, in order to identify the records responsive to this request, the City must conduct an electronic search that will necessarily capture attorney-client privileged materials. As a result, one of the three attorneys involved in the ongoing litigation must review all of the records captured by this search to determine whether they contain privileged information. It would not be “prudent” to release these records without a knowledgeable attorney first conducting the necessary review, redaction and segregation. In an email to this Division on October 3, 2024, Attorney Altieri objects to the City’s petition for a waiver of statutory limits to fees, arguing “neither request directly relates to the ongoing federal litigation regarding on-street outdoor dining in the North End. Instead, both requests seek public records about off-street outdoor dining and the restaurants that were granted permits for such off-street outdoor dining during the relevant time period (2023-24)...498 of the responsive records were readily segregable, and in fact had been segregated because they were responsive to an entirely different search than the first part, and did not require any lawyer review (because they could not, by definition, be privileged).” Conclusion Based on the City’s petition, I find the City 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 City may assess a fee limited to $75.00 per hour for attorney review.

Shawn A. Williams, Esq. SPR24/2716 Page 4 October 7, 2024 Further, this office encourages Attorney Altieri and the City to continue to communicate 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 records sought more efficiently and affordably). When preparing a fee estimate for the provision of the requested records, the City 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 City must provide a response to Attorney Altieri within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Attorney Altieri 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(c), (d)(iv)(4), § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Kieran G. Altieri, Esq.