Thaddeus Heuer v. Ipswich, Town of (SPR 20243461)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 6, 2025 SPR24/3461 Andrea Pappalimberis Town Clerk Town of Ipswich 25 Green Street Ipswich, MA 01938 Dear Ms. Pappalimberis: On December 30, 2024, this office received the petition of Christina Marshall, Esq., of Anderson & Kreiger LLP, on behalf of the Town of Ipswich (Town) seeking a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Town furnished a copy of the petition to the requestor, Tad Heuer, Esq., of Foley Hoag LLP. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 13, 2024, Attorney Heuer requested “the resumption and completion of the production of documents responsive to the October 7, 2022 request, which was suspended as of December 14, 2022 through the end of litigation last month.” In a letter to this office and the Town on January 3, 2024, Attorney Heuer opposed the Town’s petition. 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 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 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

Andrea Pappalimberis SPR24/3461 Page 2 January 6, 2025 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). Fee in Excess of $25.00 per Hour In its petition, the Town requests “an upward adjustment for the fees incurred to segregate and redact records in accordance with law to $100 per hour” and provides the following in support of its request: As noted, the group of documents now requested are related to the Waldingfield Road Planning Board approval and appeal. Even excluding direct communications with counsel, the responsive records are certain to include internal Town discussions of legal advice and work product related to the project.

Andrea Pappalimberis SPR24/3461 Page 3 January 6, 2025 Accordingly, our office will be required to review the documents. To adequately identify and protect privileged information, that review must be performed by a person who is familiar with the lawsuit and is able to identify communications that seek or reflect legal advice, especially when direct communication with an attorney is not involved. In reviewing this petition, the Supervisor must consider whether: 1) the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or without the 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 public records. All three factors favor the Town. First, the request cannot be prudently completed without the redaction or segregation. Records responsive to the Request must be reviewed by an attorney to determine whether they are attorney-client privileged. The Planning Board project that is the basis of this request has already led to litigation that has extended to the Appeals Court, and the plaintiffs in that matter were represented by Attorney Heuer. An attorney must review any potentially responsive records to ensure that the attorney-client privilege is not compromised, particularly on matters that involve or could involve litigation. Second, the requested rate is reasonable. The rate is a significant discount from what this review will actually cost the Town. To adequately identify and protect privileged information, reviewing documents for attorney-client privilege must be performed by a person familiar with Ipswich’s privacy obligations and who is able to identify communications that seek or reflect legal advice, especially when direct communication with an attorney is not involved. That person must be an attorney. Third, the fee is not designed to limit, deter, or prevent access to public records. The Town will produce responsive records using the appropriate personnel. This petition is narrowly scoped to the particular difficulties Ipswich faces responding to any portion of Attorney Heuer’s Request that implicate attorney-client- privileged information. Indeed, Ipswich could petition to charge elevated fees for tasks other than segregation and redaction required by law, and is not doing so. As the Town stated in its Response, the Town is open to any suggestion Attorney Heuer may have to narrow the Request and lower the fees. Based on the information provided in 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.

Andrea Pappalimberis SPR24/3461 Page 4 January 6, 2025 Conclusion As described above, the Town may assess a fee limited to $75.00 per hour for attorney review. This office encourages Attorney Heuer and the Town to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Please be advised that Attorney Heuer may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Attorney Heuer 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: Tad Heuer, Esq. Christina Marshall, Esq.