Lana Sullivan v. Boston Water & Sewer Commission (SPR 20251355)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 22, 2025 SPR25/1355 Dolores Randolph Director of Communications Boston Water and Sewer Commission 980 Harrison Avenue Boston, MA 02119 Dear Ms. Randolph: I have received the petition of Lana Sullivan, Esq., of the Law Office of Lana Sullivan, appealing the response of the Boston Water and Sewer Commission (Commission/BWSC) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 9, 2025, Attorney Sullivan requested: [1] All public records requests received by the BWSC from January 1, 2024 to the present and all responses thereto. [2] All communications between the BWSC and the Boston Herald and/or the Boston Globe from January 1, 2024 to the present concerning requests for comment. [3] The total amount of monies paid to [an identified individual] and/or Serino Law LLC from January 1, 2024 to the present and the names of all individual(s) who authorized payment of any such monies. [4] The total amount of monies paid to ADR Research from January 1, 2024 to the present and the names of all individual(s) who authorized payment of any such monies. [5] A spreadsheet containing the basic metadata for all emails concerning [an identified individual] (i.e., columns with to/from/cc and bcc; date sent; subject text) from October 1, 2023 to February 6, 2025 sent to or received from [29 identified individuals.] [6] All settlement agreements between BWSC and current or former employees from January 1, 2016 to the present. [7] All communications between [seven identified individuals] and [four identified individuals] from January 1, 2024 to the present concerning the sale of parking lots to the City of Boston[.] 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

Dolores Randolph SPR25/1355 Page 2 May 22, 2025 [8] All communications between the BWSC and Local 888, UAM Local 100, and OPEIU Local 6 concerning [an identified individual] from January 1, 2024 to the present. [9] All communications between [an identified individual] and the City of Boston Retirement Board from January 1, 2024 to the present. Prior Appeal This request was the subject of a prior appeal. See SPR25/1148 Determination of the Supervisor of Records (May 5, 2025). In my May 5th determination, I found that the Commission had responded to the request on April 24, 2025. Unsatisfied with the response, Attorney Sullivan petitioned this office and this appeal, SPR25/1355, was opened as a result. Subsequent to the opening of this appeal, the Commission provided supplemental responses on May 15 and May 21, 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 (two) 2 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). The Commission’s Responses In its April 24, 2025 response, the Commission produced records responsive to Items 3 and 4 of the request, redacted pursuant to the work product doctrine and to preserve “sensitive tax information.” The Commission informed Attorney Sullivan that it possessed no records responsive to Item 5. The Commission further assessed a fee of $600.00 to provide records responsive to Items 1, 2, 6, 7, 8, and 9, detailed as follows:

Dolores Randolph SPR25/1355 Page 3 May 22, 2025 The Commission will require additional time to review these documents to determine whether any information set forth in these documents is exempt from disclosure under Massachusetts public records law, for example, because it sets for personnel record information about specific current or former employees at the Commission. See, e.g., M.G.L. ch. 4, § 7, cl. 26(c). Furthermore, at least one of these settlement agreements contains a confidentiality provision that would result in a breach of contract by the Commission if it were produced in response to a public records request, and will need to be withheld on that basis … So far, the Commission has identified approximately 600 communications responsive to these requests. Many of these communications were sent to Commission attorneys and City of Boston attorneys and therefore may contain information protected from disclosure under the attorney-client privilege, work product doctrine, or similar privileges or protections … Due to the breadth of these requests, the Commission intends to charge a reasonable fee of $25 per hour to comply with the outstanding requests. See M.G.L. ch. 66, § 10(d)(iii) (permitting a municipality to charge up to $25 per hour, excluding the first two hours of work, to comply with public records requests); see also 950 C.M.R. § 32.07(2). Already, the Commission has spent more than two hours compiling records in response to these requests. The Commission further estimates that it will require at least two hours to locate all remaining settlement agreements responsive to your request, two hours to review and redact settlement agreements containing information exempt from disclosure, five hours to locate and review all public records requests and responses, and another fifteen hours to review the approximately 600 communications for responsiveness and to withhold or redact exempt material. Based on these good-faith estimates, the Commission expect to impose a total fee of approximately $600. In its May 15, 2025 response, the Commission clarified that it was not withholding communications pursuant to the attorney-client privilege, and that it would conduct a review for exempt material upon receipt of the assessed fee. In a May 16, 2025 communication to this office, Attorney Sullivan contended that the Commission should have already produced all non-exempt communications or a privilege log detailing the withheld records. In its May 21, 2025 response, the Commission reiterated that it would provide any non-exempt material to Attorney Sullivan upon payment of the assessed fee.

Dolores Randolph SPR25/1355 Page 4 May 22, 2025 Although the Commission has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 26 hours of employee time, the Commission has not provided sufficient explanation of why 26 hours of employee time is necessary. Specifically, the Commission must clarify how it requires two hours to locate the remaining settlement agreements, two hours to review and redact those agreements, and five hours to locate and review all public records requests and responses. Additionally, it appears from the Commission’s responses that it plans to redact the responsive records under the attorney-client privilege, the work-product doctrine, and Exemption (c) 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 pursuant to 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). Consequently, the Commission must clarify if the fee assessed includes time necessary to redact records under Exemption (c) and the work-product doctrine as it operates pursuant to Exemption (d) of the Public Records Law. Further, the Commission must clarify whether $25.00 per hour is the hourly rate of the lowest paid employee who has the skill required to search for, compile, segregate, redact, or reproduce the requested records. For the reasons discussed above, I find the Commission must revise its fee estimate or provide further explanation of how the fee of $600.00 assessed in its April 24, 2025 estimate is consistent with G. L. c. 66, § 10(d). Additionally, Attorney Sullivan has objected to the Commission’s claims that the responsive records contain material exempt from disclosure under the Public Records Law. I find that these matters cannot be addressed at this time, as the contents of these records are unclear. Once responsive records are provided, Attorney Sullivan may appeal the substantive nature of the Commission’s response within ninety calendar days. See 950 C.M.R. 32.08(1). This office encourages Attorney Sullivan and the Commission to communicate further in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality 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 to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion Accordingly, the Commission is ordered to provide Attorney Sullivan 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

Dolores Randolph SPR25/1355 Page 5 May 22, 2025 pre@sec.state.ma.us. Attorney Sullivan may appeal the substantive nature of the Commission’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Lana Sullivan, Esq.