Paige Tortorelli v. Rowe, Town of -- Town Clerk (SPR 20251052)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 23, 2025 SPR25/1052 Michael D’Ortenzio Jr., Esq. KP Law 101 Arch Street, 12th Floor Boston, MA 02110 Dear Attorney D’Ortenzio Jr.: On April 15, 2025, this office received your petition on behalf of the Town of Rowe (Town) requesting permission to charge for time spent segregating and 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, Paige Tortorelli. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 1, 2025, Ms. Tortorelli requested: [A]ll records relating to services provided by CanaRx, or any other trade names, vendors, or subcontractors associated with this entity, from January 1, 2021- present. This request should include, but is not limited to: [1] Any contracts and Memorandums of Understanding in effect during the aforementioned time period[;] [2] A list of prescription medicine for covered employees, retirees, and their families as well as fulfillment of prescription medicine to patients[;] [3] Invoices, which should include both payment amounts and a description of the medications[;] [4] A list of any medications imported from abroad, which should include the name of the drug, the country from which the medication was imported, and the cost of the drug[;] [5] A list of medications obtained through a drug manufacturer’s patient assistance program[;] 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

Michael D’Ortenzio Jr., Esq. SPR25/1052 Page 2 April 23, 2025 [6] Correspondence between the county and CanaRx regarding its services, internal emails between county administration about CanaRx, and emails between patients and county administration about CanaRx[;] [7] Marketing materials provided by CanaRx[;] [8] Materials used to onboard patients to CanaRx[;] [9] Any meeting minutes which discuss approving, renewing, and/or issues with CanaRx[;] [10] A list of saving summaries on a per employee or per medicine basis. 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). 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).

Michael D’Ortenzio Jr., Esq. SPR25/1052 Page 3 April 23, 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). Petition to Assess Fees In its petition, the Town requests “to charge for segregation and redaction time beyond Exemption (a) given the sensitive medical records at issue and the broad time period the request covers.” The Town provides the following information: [E]xemption (a): Exemption (a) covers a variety of topics that sundry statutes prevent disclosure of. As the Town compiles the records responsive to this request, it must redact Exemption (a) material should any appear. [H]ere, the material requested specifically implicates Exemption (c), as the request asks for medications obtained by Town employees. The Town submits that unredacted disclosure of such records would constitute the release of personnel and medical information relating to specifically named individuals in a manner which would be an unwarranted invasion of personal privacy. The Town notes that the requestor has specifically asked for such personal information to be redacted. [E]xemption (o): To the extent that the records contain the home address, personal e-mail address, and home telephone number of employees of the Town, such records will be withheld. [E]xemption (p): To the extent that the records contain the home address, personal

Michael D’Ortenzio Jr., Esq. SPR25/1052 Page 4 April 23, 2025 e-mail address, and home telephone number of family members of employees of the Town, such records will be withheld. Conclusion Accordingly, I find the Town has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction. Further, this office encourages Ms. Tortorelli 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). Please note, Ms. Tortorelli 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: Paige Tortorelli