Katie Arrington v. Swampscott, Town of - Town Clerk (SPR 20250290)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 6, 2025 SPR25/0290 Jared H. LaLiberte Town Clerk/Records Access Officer Town of Swampscott 22 Monument Avenue Swampscott, MA 01907 Dear Mr. LaLiberte: On January 30, 2025, this office received your petition on behalf of the Town of Swampscott (Town) requesting 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 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 26, 2025, Ms. Arrington requested the following “public records for the period of June 1, 2024 to the present”: [1] Copies of all records relating in any way to the “policy” referenced in your email to me on 1/21/2025 (see below email)[;] [2] Copies of all records relating to any communication you sent to all town employees, town consultants, and/or town boards and committees requesting the assembly and return to you of any records requested by me since November 1, 2025[;] [3] Copies of all communications between the Swampscott Town Clerk’s office and Select Board member [identified individual][;] [4] Copies of any communication to or from legal counsel representing the Town of Swampscott requesting, discussing or providing any opinion or guidance relating to any of the following...[.] 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). 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 H. LaLiberte SPR25/0290 Page 2 February 6, 2025 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 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).

Jared H. LaLiberte SPR25/0290 Page 3 February 6, 2025 Fee in Excess of $25.00 per Hour In its petition, the Town is seeking approval “to be authorized to assess fees for this work at the rate of $75.00/hour for the privilege review to be conducted by Town Counsel.” The Town provides the following in support of its request to charge fees in excess of $25.00 per hour: [B]ased 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. … [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. In an email to this Division on January 31, 2025, Ms. Arrington objects to the Town’s petition seeking a waiver of statutory limits to fees, arguing “... [a]s you will see from my records request, I have requested a copy of such policy and other records relating to such policy...my financial status and employment makes payment of the increased fees prohibitive. My request is not for any commercial purpose. I have purposely limited the scope of my request. There is no reasonable basis for there to be a privilege review of 9 hours by counsel to review the requested records.” 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). However, this allowance is limited to $75.00 per hour for attorney review. Conclusion Accordingly, I find the Town has met its burden to explain how 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). The Town may assess a fee limited to $75.00 per hour for attorney review. Further, this office encourages Ms. Arrington and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality or agency 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 or agency to produce records sought more efficiently and affordably).

Jared H. LaLiberte SPR25/0290 Page 4 February 6, 2025 When preparing a fee estimate for the provision of the requested records, the Town 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 Town must provide a response to Ms. Arrington within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). 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