Lana Sullivan v. Boston Water & Sewer Commission (SPR 20251670)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 17, 2025 SPR25/1670 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 SPR25/1670 Page 2 June 17, 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 Appeals This request was the subject of prior appeals. See SPR25/1148 Determination of the Supervisor of Records (May 5, 2025) and SPR25/1355 Determination of the Supervisor of Records (May 22, 2025). In my May 22nd determination, I ordered the Commission to revise its assessed fee or provide further explanation of how its assessed fee was consistent with G. L. c. 66, § 10(d). The Commission responded on June 6, 2025. Unsatisfied with the response, Attorney Sullivan petitioned this office and this appeal, SPR25/1670, was opened as a result. 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 June 6th Response In its June 6, 2025 response, the Commission assessed a fee of $600.00 to provide records responsive to Items 1, 2, 6, 7, 8, and 9 of the request. The Commission expressly incorporated its prior April 24, 2025 response, which detailed the assessed fee as follows:

Dolores Randolph SPR25/1670 Page 3 June 17, 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 June 6, 2025 response, the Commission further stated: The Commission requires two hours to locate the remaining settlement agreements because the expansive scope of the request will require Commission employees to conduct an exhaustive search for documents responsive to the request. The request seeks all settlement agreements entered into by the Commission within the last 9 ½ years. The term “settlement agreements” encompasses a variety of types of agreements, including litigation settlements, separation agreements, labor union grievance settlements, and perhaps others. To respond to this request, the Commission must search throughout its records to identify all records responsive to the overbroad scope of this request.

Dolores Randolph SPR25/1670 Page 4 June 17, 2025 The Commission requires an additional 2 hours to review the settlement agreements because they may contain information that is exempt from disclosure. In Globe Newspaper Co. v. Exec. Office of Administration and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013), the Superior Court provided a non- exhaustive list of 20 different categories of information commonly contained in settlement agreements that could be redacted … Finally, the Commission requires 5 hours to identify and collect all public records requests and responses that the Commission has received and sent since January 1, 2024. The Commission frequently receives public records requests from journalists, research firms, and private citizens, often several times a day and hundreds of times during the relevant time period of this request. In some cases— as this process has demonstrated—the Commission issues multiple responses to a set of public records requests. Moreover, the Commission does not maintain a central repository of all public records and responses that can be reproduced at the click of a button. Rather Commission employees will need to conduct an exhaustive search of their records to identify all requests and responses, download those documents, and then process them for production. As above, the Commission’s estimate that it will take 5 hours to complete this work is a conservative estimate … [T]he fee assessed includes time necessary to redact records under Exemption (c) and the work-product doctrine as it operates pursuant to Exemption (d) … The Commission does not have any employees who make less than $25 per hour who have the necessary skills to complete these requests. The Commission must deploy its information technology professionals, who make approximately $49 per hour, to collect and export documents for review by the Commission’s legal counsel, who make approximately $66 per hour. In its response, the Commission stated that it intends to redact the responsive records under the attorney-client privilege and Exemptions (c) and (d) 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). Where I am not aware that the Commission has submitted a petition under G. L. c. 66, § 10(d)(iv), seeking permission to charge for redactions not required by law, I find that the Commission may not assess a fee for time spent redacting responsive records under Exemptions (c) and (d) of the Public Records Law. For the reason 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 June 6, 2025 estimate is consistent with G. L. c. 66, § 10(d).

Dolores Randolph SPR25/1670 Page 5 June 17, 2025 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 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.