Grace Tucci v. Billerica, Town of - Town Clerk (SPR 20251637)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 16, 2025 SPR25/1637 Donna McCoy Town Clerk Town of Billerica 365 Boston Road Billerica, MA 01821 Dear Ms. McCoy: On June 10, 2025, this office received the petition of Noemi Kawamoto, Esq., of Brooks & DeRensis P.C., on behalf of the Town of Billerica seeking permission 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, Grace Tucci. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On May 30, 2025, Ms. Tucci requested the following: 1. …[the former Town Manager’s] calendar from January 2025 through the date of the request; 2. All correspondence for the five [identified individuals] listed below for the time period of January 2025 through the date of the request[;] 3. All correspondence for the two [identified individuals] for the time period of April 7, 2025 through the date of the request[;] Petition to Assess Fees – Municipalities The Supervisor of Records (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

Donna McCoy SPR25/1637 Page 2 June 16, 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. 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 determination 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 Petition In its petition, the Town requests, “approval to assess fees in responding to a public records requested…” In support of its petition, the Town provides the following information: A copy of the written response to Ms. Tucci is enclosed herewith. As explained in the response to Ms. Tucci, the documents requested are likely to contain information exempt under exemptions (c) or (e), and/or contain attorney-client privileged information. Due to the volume of responsive documents (over 38,000

Donna McCoy SPR25/1637 Page 3 June 16, 2025 documents were returned in a search for documents responsive to Requests 2 and 3), the Town anticipates it will take a significant amount of time for the Town to segregate and redact exempt information. … The Town anticipates that the documents you have requested in Request 1 contain information that is exempt from disclosure pursuant to exemption (e), and that the documents you have requested in Requests 2 and 3 contain information that is exempt from disclosure pursuant to exemption (c) and/or the attorney-client privilege. In light of 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 redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for the segregation and redaction of such exempt material. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the Town to provide records in an efficient and affordable manner. Please note, Ms. Tucci 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: Grace Tucci