Mark W. Corner v. Norfolk, Town of - Town Clerk (SPR 20251971)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2025 SPR25/1971 Judith Lizardi Executive Assistant Town Administrator’s Office Town of Norfolk One Liberty Lane Norfolk, MA 02056 Dear Ms. Lizardi: On July 8, 2025, this office received your petition on behalf of the Town of Norfolk (Town) seeking permission to waive statutory limits to fees and 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, Mark W. Corner, Esq., of O’Hagan Meyer. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 20, 2025, Attorney Corner requested: [1] All public records concerning communications between any person on the one hand and any department, or any elected or appointed board, of the Town of Norfolk concerning the property located at . . . Park Street, including but not limited to such communications with the Building Department, Zoning Board of Appeals, Planning Department and/or Town Counsel[;] [2] All public records concerning or identifying [an identified individual] and/or Miles of Excavating[;] [3] All public records concerning [an identified individual] including public records concerning communications between [an identified individual] and any town employee or elected or appointed official of the Town. 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 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

Judith Lizardi SPR25/1971 Page 2 July 11, 2025 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). It is my understanding that this request was not placed 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)

Judith Lizardi SPR25/1971 Page 3 July 11, 2025 Current Petition In its petition, the Town requests to charge fees for segregation and redaction of the responsive records at a rate of $150.00 per hour and argues the following in support of its request: A preliminary review of the records responsive to Attorney Corner’s request reveals that Town Counsel is involved in many of the communications in and advisory capacity that is very likely to implicate the attorney-client privilege. “[T]he attorney client privilege shields from the view of third parties all confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice,” and performs an “essential function” by “enabl[ing] clients to make full disclosure to legal counsel of all relevant facts, no matter how embarrassing or damaging these facts might be, so that counsel may render fully informed legal advice.” Suffolk Const. Co. v. Div. of Cap. Asset Mgmt., 449 Mass. 444, 448-49 (2007). Although the public records law encourages wide-ranging disclosures, the attorney-client privilege is so essential that “confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege.” Id. at 450. Because the consequences of disclosing attorney-client privileged materials to a third party may include a broad waiver of the privilege, careful review of all potentially privileged documents is paramount. [P]reliminary review of the records responsive to Attorney Corner’s request reveals that Town Counsel is involved in many of the documents that constitute work product which have been prepared for the purposes of active litigation. Work product is protected from disclosure and are not public records. See DaRosa v. City of New Bedford, 471 Mass. 446, 462 (2015). An associate attorney in the Town Counsel’s office is the lowest paid employee with the requisite knowledge for reviewing documents for the attorney-client privilege and determining whether a document is work product related to litigation. After my office has collected the responsive records, an attorney will perform the review, segregation, and redactions necessary for production of the requested documents. Town Counsel has agreed to reduce its hourly rate for an associate attorney from $210 per hour to $150 per hour to perform this review[.] Pending Litigation In its petition, the Town states, “the Town of Norfolk is in active litigation with Attorney Corner’s client, [an identified individual] and his business, Miles of Excavating, and the property in Norfolk subject to the request, … Park Street, in the Norfolk County Superior Court[.]

Judith Lizardi SPR25/1971 Page 4 July 11, 2025 950 C.M.R. 32.08(2)(b) provides in pertinent part: The Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: The public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has reviewed the trial court’s docket and verified that civil litigation, relating to records at issue in Attorney Corner’s request, is active and ongoing in the Norfolk Superior Court. See Dianne Dziurdz Trustee of The Dziurdz Family Trust et al vs. David Axberg As member of The Town of Norfolk Zoning Board of Appeals et al, (Norfolk Superior Court, Docket No. 2282CV01032); see also Robert J. Bullock, Jr. In his/her capacity Building Commissioner and The Zoning Enforcement Officer for the Town of Norfolk vs. Dianne Dziurdz Trustee of The Dziurdz Family Trust et al, (Norfolk Superior Court, Docket No. 2382CV00226) Conclusion In light of the pending matters, I decline to opine on the Town’s petition at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Mark W. Corner, Esq.