Jeffrey Mickelson v. Wellesley, Town of - Town Clerk (SPR 20242958)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 4, 2024 SPR24/2958 K.C. Kato Town Clerk Town of Wellesley 525 Washington Street Wellesley, MA 02482 Dear Ms. Kato: On October 30, 2024, this office received the petition of Attorney Emily A. Meehan, of Harrington Heep LLP, on behalf of the Town of Wellesley (Town) requesting permission to assess fees for time spent segregating and redacting responsive records. 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 Town furnished a copy of the petition to the requestor, Jeffrey Mickelson. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On October 16, 2024, Mr. Mickelson requested the following: 1) Page 14 of the Pickleball Court Study Phase II/ Morse’s Pond Parking Lot 2024 states, “Previous discussions had within the Town of Wellesley’s community established a 500 [foot] minimum distance between the nearest residential property and a new pickleball court.” Provide a copy of all records regarding or documenting these previous discussions including, without limitation, when these previous discussions took place, where these previous discussions; participants of these previous discussions; the substance of these previous discussions; the scheduling of these previous discussions; and whether impacts to traffic, parking, wildlife, the natural habitat, or other uses of the area were discussed or considered in these previous discussions; 2) Provide a copy of all records regarding or documenting any arrangement with Weston&Sampson to study pickleball in the Town of Wellesley including, without limitation, the contract to conduct Phase I and II of what is commonly referred to as the Pickleball Court Study, the scope of work regarding Phases I and II of the Pickleball Court Study, any amendments or change orders to the contract or scope of work to conduct Phases I and II of the Pickleball Court Study, and invoices, bills and payments related to Phase I and II of the Pickleball Court Study. This particular request seeks records from January 1, 2023, through the present; and 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

K.C. Kato SPR24/2958 Page 2 November 4, 2024 3) Page 14 of the Pickleball Court Study Phase II/ Morse’s Pond Parking Lot 2024 states, “Per the acoustics study done in Phase I, 4 courts would require a 15 [foot] height sound barrier.” Provide a copy of all records regarding or documenting the conclusion that 4 courts would require a 15 foot height sound barrier including, without limitation, the calculation and application of the equation(s) set forth in the SH Acoustics guidelines. In an email on October 30, 2024, Mr. Mickelson objected to the Town’s petition. Petition to Assess Fees – Municipalities 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, § 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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,

K.C. Kato SPR24/2958 Page 3 November 4, 2024 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 Town requests, “permission to charge an hourly rate of $25.00 to complete this request.” In support of its request, the Town provides the following information concerning anticipated redactions: Information contained in the records may fall within Exemption (c) to the Public Records Law. The records include emails sent between Town employees. These emails could contain personnel information or other personal information shared by employees. Additionally, the records contain communications between Town staff and private citizens. These emails could contain medical information or other information that these citizens may not want revealed. Release of such information, not available from other sources, could result in personal embarrassment to the individual senders. This information can be withheld and redacted under Exemption (c) because the public interest in the disclosure of such information does not outweigh the privacy interests.... Further, other exemptions may apply, including Exemptions (b), (d), (e), (n), (o), (p), due to the records constituting internal Town communications, and other Exemptions the nature of which may not be readily obvious merely from the types of records searched. The Town must review each record prior to release. It cannot simply provide access to these records. The above is a recitation of what the Town deems to be the most likely bases for withholding records or redacting them once reviewed. The foregoing is not intended to limit the allowable bases for doing so, as the Town may discover additional bases upon review[.] 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.

K.C. Kato SPR24/2958 Page 4 November 4, 2024 Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the Town to provide records in an efficient and affordable manner. 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Jeffrey Mickelson Emily A. Meehan, Esq.