Katie Arrington v. Swampscott, Town of - Town Clerk (SPR 20243228)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 6, 2024 SPR24/3228 Jared LaLiberte Town Clerk Town of Swampscott 22 Monument Avenue Swampscott, MA 01907 Dear Mr. LaLiberte: On December 2, 2024, this office received the petition of Jared LaLiberte on behalf of the Town of Swampscott (Town) seeking a waiver of statutory limits on fees that may be assessed in responding to a public records 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 Town furnished a copy of the petition to the requestor, Katie Arrington. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On November 17, 2024, Ms. Arrington requested the following: 1. All written communications to or from [an identified individual], including without limitation, emails, written correspondence, records, voicemail messages, and text messages, for the period June 1, 2024 to present, relating any of the following: a. VFW Post 1240; b. 10 New Ocean Avenue, Swampscott; c. 12-24 Pine Street, Swampscott d. Veterans housing; e. Income restricted housing / affordable housing; f. Request for Proposals issued July 26, 2023 by the Town of Swampscott, relating to 10 New Ocean Avenue and 12-24 Pine Street; and g. B’Nai B’Rith Housing. 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, 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

Jared LaLiberte SPR24/3228 Page 2 December 6, 2024 § 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, 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, “a waiver of statutory limits on fees that may be assessed in responding to the request.” In support of its request, the Town provides the following information concerning anticipated redactions:

Jared LaLiberte SPR24/3228 Page 3 December 6, 2024 In this instance, based on the Town’s initial review of this request, which seeks communications involving the Select Board Chair and the topics provided, the Town anticipates that several of the requested records will relate to matters for which Town Counsel has been involved relating to the attorney-client relationship, as well as executive session material pursuant to the Open Meeting Law, G.L. c. 30A, protected by Exemption (a) of the Public Records Law. Without an adjustment in the statutory rate, the Town will incur significant financial cost if it is required to pay its attorney the full Town Counsel rate to respond to this request which implicates confidential matters. As grounds for this Petition, therefore, the Town states that there is good cause for permitting the Town to charge the below cost estimate because Town Counsel is the lowest paid employee capable of reviewing all such records for necessary redactions for attorney-client privilege, attorney-client work product, and other related legal and policy considerations. Accord SPR 22/2793 (approving fee estimate where attorney was only employee “with the necessary skill to determine whether the attorney-client privilege requires certain portions of the records … to be redacted” and “whether other exemptions apply”). Additionally, here, the cost estimate has been reduced from the “actual cost” of responding to the request but has been reduced to $75.00/hour for purposes of demonstrating that the fee estimate is made in good faith and in an attempt to be reasonable, and is not designed to limit, deter, or otherwise prevent any access to the non-exempt or confidential records, but rather, to partially compensate the Town for the actual costs of complying with the request. The Town further submits that it is not seeking an increase in the rate for the Town’s IT vendor to facilitate the searches, which remains at $25/hour. 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 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 Town may assess a fee limited to $75.00 per hour for attorney review. Conclusion Accordingly, I find the Town may assess a fee limited to $75.00 per hour for attorney review. Please note, Ms. Arrington 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).

Jared LaLiberte SPR24/3228 Page 4 December 6, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Katie Arrington