Mark Gould v. North Attleborough, Town of - Town Clerk (SPR 20250686)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 14, 2025 SPR24/0686 Patricia McNielly Town Clerk Town of North Attleboro 43 South Washington Street North Attleboro, MA 02760 Dear Ms. McNielly: On March 12, 2025, this office received your petition on behalf of the Town of North Attleboro (Town) seeking permission to waive statutory limits to fees and to charge for time spent segregating or 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, Mark Gould, Esq., G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 19, 2025, Attorney Gould requested “[a]ll emails sent from the Council President . . . between February 19, 2023 and February 18, 2025 including all attachments and email chains related to the emails.” On March 7, 2025, Attorney Gould narrowed the scope of the request to seek emails sent between the following dates: [1] February 15, 2023- April 15, 2023[;] [2] May 1, 2024- May 15, 2024[;] [3] January 14, 2025-March 7, 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). 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

Patricia McNielly SPR25/0686 Page 2 March 14, 2025 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). 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). Petition to Assess Fees In its petition, the Town requests to charge fees for segregation and redaction of the responsive records. In a letter to this office on March 13, 2025, the Town provided the following additional information in support of its request: The records being requested (emails) could contain PII (personal Identifying Information) also contains attorney client privilege. Please see exemption (o) and

Patricia McNielly SPR25/0686 Page 2 March 14, 2025 exemption (p) from the Massachusetts Guide to Public records. To satisfy this request, the Town will need to segregate and redact information from the documents being requested… Based on the information provided in its fee 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 segregation or redaction. See G. L. c. 66, § 10(d)(iv). Fee in Excess of $25.00 per Hour In its petition, the Town requests to charge a fee of $250.00 per hour, and provides the following in support of its request: The Council President’s emails (as requested) requires and qualifies for segregating and redacting because of his role and the nature of the information contains attorney client privilege and PII. With that, we are seeking to recover the costs associated KP Law for this service. In light of the Town’s petition, I find the Town has partially 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). The Town may assess an hourly rate limited to $75.00 for attorney review for segregation and redaction under the attorney-client privilege. However, the Town may not assess a fee in excess of $25.00 per hour for other tasks. G. L. c. 66, § 10(d)(iii). 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, while the Town may assess a fee limited to the hourly rate of $75.00 for attorney review, the Town may not assess a fee in excess of $25.00 for other tasks. Please note, Attorney Gould 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, §§ 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Mark Gould, Esq.