Dana Hourigan v. Mansfield, Town of - Town Clerk (SPR 20251030)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2025 SPR25/1030 Matthew Violette Assistant Town Manager Town of Mansfield 6 Park Row Mansfield, MA 02048 Dear Mr. Violette: I have received the petition of Dana Hourigan appealing the response of the Town of Mansfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 1, 2025, Ms. Hourigan requested, “the full report related to the Dumas v. Doherty case.” On April 11, 2025, the Town provided a fee estimate. Unsatisfied with the Town’s response, Ms. Hourigan petitioned this office and this appeal, SPR25/1030, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Matthew Violette SPR25/1030 Page 2 April 30, 2025 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). Current Appeal In her appeal, Ms. Hourigan states, “I’m writing to you to appeal that FOIA decision so that I can receive the full report from the Dumas V Doherty suit. I will gladly pay any fees. Thus far, those who have put in a FOIA request have been refused, and we have not received a cost estimate….” The Town’s April 11th Response In its April 11, 2025 response, the Town states it plans on redacting information in the responsive record under Exemptions (c) and (f) of the Public Records Law, as well as under attorney-client privilege. The Town also states: Supervisor of Public Records decision allowing the Town to charge you for a portion of the cost to redact the report[:] The attached decision from the Supervisor of Public Records (“SPR”) allows the Town to charge you hourly for a portion of the cost to redact the Report before producing it. Most of the hours would be charged at $25/hour but the hours related to the redaction of information protected by the attorney-client privilege, you would be charged $75/hour. A copy of the SPR Decision is attached. Based on the Town’s April 11th response, where the Town’s fee petition was for a separate request, it is unclear how the Town may charge more than $25 an hour for redactions made under attorney-client privilege. I am not aware that the Town has submitted a petition

Matthew Violette SPR25/1030 Page 3 April 30, 2025 under G. L. c. 66, § 10(d)(iv) for the present request. As such, although the Town may assess a fee for redactions required by law under Exemption (a) and the attorney-client privilege, it is uncertain whether the Town may charge more than $25 an hour. Additionally, although the Town states that it anticipates making redactions where necessary, it is unclear how the Town can assess fees for redactions under Exemptions (c) and (f) of the Public Records Law. Under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). The Town must clarify if the redactions described in its fee estimate are required by law and provide the applicable statutes, if any. Upon review, the Town has not provided the total amount it intends to charge. Further, the Town’s fee estimate lacks confirmation that the rate per hour is of the lowest paid employee who is capable of performing the task(s). The Town must clarify these matters. Also, it is unclear how much time the Town requires to search, review and redact the responsive record. The Town must provide further details regarding the contents of the record and how much time it will take to review the record. Further, the Town must clarify if the first free 2 hours to search for, compile, segregate, redact or reproduce records have been included in the estimate. Municipalities may not assess a fee for the first two (2) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(iii). For the reasons discussed above, I find the Town must revise its fee estimate, or provide further explanation of how the fee assessed in its April 11th response is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Ms. Hourigan with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Dana Hourigan Leo Peloquin, Esq.