Joanne Kane v. Westfield, City of - Gas and Electric Department (SPR 20251420)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 23, 2025 SPR25/1420 Robin Krok Records Administration Officer Westfield Gas & Electric Light Department 40 Turnpike Industrial Road Westfield, MA 01086-0990 Dear Ms. Krok: On May 20, 2025, this office received your petition on behalf of the Westfield Gas & Electric Light Department (Department) requesting a waiver of statutory limits to fees that may be assessed in responding to the request. 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 Department furnished a copy of the petition to the requestor, Joanne Kane. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On May 14, 2025, Ms. Kane requested the following records: [1] A list of all law firms and attorneys that have provided legal services to Westfield Gas + Electric/Whip City Fiber, including: Firm or attorney names, Dates of engagement, Nature or subject of services, Related contracts, scopes of work, and invoices paid[;] [2] Employment contracts for the General Managers and Assistant General Manager, including amendments[;] [3] A full record of employee compensation from 2020 to present including: Base salaries, Bonuses, Overtime, Stipends or allowances, Any additional or non-monetary compensation, Documentation showing how bonuses or incentive pay are determined. 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 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

Robin Krok SPR25/1420 Page 2 May 23, 2025 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). 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).

Robin Krok SPR25/1420 Page 3 May 23, 2025 Current Petition In its petition, the Department requests “[a]uthorization to charge more than $25 per hour in connection with responding to a specific public records request under the provisions of M.G.L. c. 66, § 10,” and provides the following information: [W]ith regard to the attorney and law firm information requested, WG+E will internally respond to gathering the factual information requested. However, only its attorneys are qualified to determine if an invoice contains confidential communications between attorney and WG+E and any description that reveals litigation strategy, legal opinions, or advice. Therefore WG+E will necessarily require engaging its counsel to review each invoice issued since January of 2020. WG+E primarily uses two separate firms that issue invoices monthly. WG+E also utilizes three other firms for special circumstances. [W]ith regard to employment related matters in the request, WG+E requests to charge the lowest embedded hourly rate for the individual on staff that is eligible to access employee data. The annual salary of this individual is $66,206.40, or $31.83 per hour based on a 40-hour workweek for 52 weeks per year. [T]he time gathering information requested with regard to the General Manager and Assistant General Manager contracts will be assessed at the standard rate of $25.00 per hour. In light of the Department’s petition, I find the Department 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 Department may assess an hourly rate limited to $75.00 for attorney review. However, the Department may not assess a fee in excess of $25.00 per hour for other tasks. G. L. c. 66, § 10(d)(iii). Conclusion As described above, the Department may assess a fee limited to $75.00 per hour for attorney review. Further, while the Department may assess a fee limited to the hourly rate of $75.00 per hour for attorney review, the Department may not assess a fee in excess of $25.00 for other tasks. This office encourages Ms. Kane and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Please be advised that Ms. Kane may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Ms. Kane 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).

Robin Krok SPR25/1420 Page 4 May 23, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Joanne Kane