Kenneth Carangelo v. Nahant, Town of - Town Clerk (SPR 20250865)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 1, 2025 SPR25/0865 Diane Dunfee Town Clerk Town of Nahant 334 Nahant Road Nahant, MA 01908 Dear Ms. Dunfee: On March 28, 2025, this office received the petition Michael D’Ortenzio Jr, Esq., of KP Law, P.C, on behalf of the Town of Nahant (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, Kenneth Carangelo. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 14, 2025, Mr. Carangelo requested: [1] The dates and payments made to reach those [specified] totals[;] [2] Confirmation whether the $170,864.76 cited is the full total or if there were additional amounts (given the use of the word “include” which implies there may be more), and if so what the additional amounts were[;] [3] Copies of the applicable invoices[;] 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 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

Diane Dunfee SPR25/0865 Page 2 April 1, 2025 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). Petition to Assess Fees In its petition, in addition to charging for segregation and redaction required by law under Exemption (a) and the attorney-client privilege, the Town requests to charge for segregation and

Diane Dunfee SPR25/0865 Page 2 April 1, 2025 redaction under Exemption (c) of the Public Records Law. In a correspondence enclosed alongside its petition, the Town argues the following in support of its request: Should potentially responsive records contain references to confidential personnel and medical information, such records may be redacted after a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). The Town will assess the weight of the privacy interests at stake, namely, (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities, (2) whether the materials sought contain intimate details of a highly personal nature, and (3) whether the same information is available from other sources, in making its determination. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). To the extent that the invoices contain personal or medical information, such information may be redacted pursuant to Exemption (c). 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). Fees in Excess of $25.00 per Hour In its petition, the Town requests to charge a fee of $75.00 per hour, and provides the following in support of its request: Here, hundreds of pages of legal invoices relating to matters under active litigation have been requested. The Town may appeal the existing Article 97 case (Essex County Superior Court Civil Action No. 2177CV00936) to the Appeals Court. As such, the invoices must be reviewed and redacted to remove privileged information. Further, many of the invoices include entries for matters unrelated to the Article 97 case, which may also contain privileged information requiring redaction. Without an adjustment in the statutory rate, the Town will incur significant financial cost if it is required to pay Town Counsel the full rate of $250.00/hour to respond to this request that implicates confidential matters. [T]he Town states that there is good cause for permitting the Town to charge $75.00/hour for Town Counsel services 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 SPR22/2793 (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, as Town

Diane Dunfee SPR25/0865 Page 2 April 1, 2025 Counsel’s rate is $250.00/hour 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 requests. 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. Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the School may assess a fee for segregation and redaction. Further, the Town may assess a fee limited to $75.00 per hour for attorney review. This office encourages Mr. Carangelo 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 note, Mr. Carangelo 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: Kenneth Carangelo Michael D’Ortenzio Jr, Esq.