Katie Arrington v. Swampscott, Town of - Town Clerk (SPR 20250212)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 28, 2025 SPR25/0212 Jared LaLiberte Town Clerk Town of Swampscott 22 Monument Avenue Swampscott, MA 01907 Dear Mr. LaLiberte: On January 24, 2025, this office received your petition on behalf of the Town of Swampscott (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, Katie Arrington. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 13, 2025, Ms. Arrington requested: [1] The Request for Proposals for 10 New Ocean Street, 12-24 Pine Street, including without limitation, any opinion or guidance concerning whether the RFP allows the Select Board to approve an agreement with a third party that does or does not include space in the project for a new Swampscott VFW Post 1240; [2] Any responses to the RFP, including without limitation, any opinion or guidance concerning what the Select Board is legally allowed or not allowed to negotiate with the sole respondent to the RFP; [3] Article 11 and/or 12 approved by the Town of Swampscott Town Meeting at the Swampscott Annual Town Meeting held on May 15, 2023, including without limitation, any opinion or guidance concerning that such Warrant Articles do or do not require the project to include space for a new Swampscott VFW Post 1240; [4] The Citizen Petition filed with the Town of Swampscott Clerk’s Office on December 3, 2024 by Katie Arrington and others. In its petition, the Town states, “the Town has already provided number 4 and the requests for proposal for 10 New Ocean Street and 12-24 Pine Street.” 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 SPR25/0212 Page 2 January 28, 2025 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 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 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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).

Jared LaLiberte SPR25/0212 Page 3 January 28, 2025 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 to “assess fees for this work at the rate of $75.00/hour for the privilege review to be conducted by Town Counsel” and argues the following in support of its request: In this instance, based on the Town’s initial review of this request, which seeks communications involving the Town Employees 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 and the Town Clerk who must search through the records, which remain at $25/hour. 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.

Jared LaLiberte SPR25/0212 Page 4 January 28, 2025 Conclusion As described above, the Town may assess a fee limited to $75.00 per hour for attorney review. This office encourages Ms. Arrington 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 Ms. Arrington may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). 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). Sincerely, Manza Arthur Supervisor of Records cc: Katie Arrington