Anonymous Requester v. Hopkinton, Town of - Town Clerk's Office (SPR 20252326)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 14, 2025 SPR25/2326 Connor B. Degan Town Clerk Town of Hopkinton 18 Main Street Hopkinton, MA 01748 Dear Mr. Degan: On August 11, 2025, this office received your petition on behalf of the Town of Hopkinton (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 anonymous requestor (“requestor”). G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On July 29, 2025, the requestor sought the following: [1] Status of any pending Legal Action for Town of Hopkinton that would name the Hopkinton Conservation Commission or [an identified individual][;] [2] All Emails and documentation between 2021 to date [relating to three identified Town email accounts] . . .[;] [3] All emails and documented discussions between all town parties and volunteer gov regarding [an identified individual’s] resignations [sic]. Prior to Resignations and after resignation[;] [4] All emails going from any town officials to either of these above from July 2024 to date. 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 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

Connor B. Degan SPR25/2326 Page 2 August 14, 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 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 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). Petition to Assess Fees In its petition, the Town seeks “permission to charge an hourly rate of $25 per hour” for the segregation and redaction of “potentially responsive records for items #2 and #4” of the

Connor B. Degan SPR25/2326 Page 2 August 14, 2025 request, and indicates that it “will respond to the Request by supplying responsive records for item #1, above, without charge.” Additionally, the Town cites Friedman v. Division of Administrative Law Appeals, 103 Mass. App. Ct. 806 (2024) in regards to Item 3 of the request and explains that “[t]he Town has further determined that item #3 does not provided a reasonable description of the requested records, and therefore will not provide records in response to that item.” In support of its request to assess fees for segregation and redaction, the Town provides the following: For purposes of this fee petition, the Town searched its emails for potentially responsive records for items #2 and #4, above, with the following results. Item Potentially Responsive Records 2 3,331 4 3,003 Here, items #2 and #4 are requests for emails from town officials’ accounts, without further regard for subject matter, during specified dates. As such, the information contained in these records may fall within virtually any exemption from disclosure that applies to municipal records. And there is no way to tell without reviewing the content of each record. . . . For example, many of these records may fall within Exemption (c) to the Public Records Law, because [am identified] email account . . . was that of a full-time municipal employee who likely emailed with the Town’s Human Resources Department during the time period in question. Such emails would likely contain information from that employee’s personnel record or otherwise contain information that is private. . . . Such information would need to be identified, withheld, and redacted under Exemption (c). . . . Finally, it is possible, if not likely, that information in these emails could implicate other exemptions as well, including Exemption . . . (b), (d), and (e). Based on the information provided in its fee 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 segregation or redaction. 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. Fee in Excess of $25.00 per Hour In its petition, the Town additionally requests to charge a fee of $150.00 per hour for segregation or redaction of records responsive to Items 2 and 4 under the attorney-client privilege, and provides the following in support of its request:

Connor B. Degan SPR25/2326 Page 2 August 14, 2025 Additionally, the other two email addresses are for either the position of Chair of the Town’s Conservation Commission or specifically for a past Chair, who would have (in addition to the aforementioned municipal employee) emailed with Town Counsel from time to time concerning litigation. . . . Privileged information contained in these emails would therefore need to be identified, withheld, and redacted. . . . 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 $215 per hour to $150 per hour to perform this review. To be clear: only emails involving Town Counsel would be subject to this review and charge. Therefore, I request permission to charge $150 per hour for emails that include Town Counsel as a sender or recipient. . . . For purposes of this request, the Town will assume that no more than 10% of the requested records (633 records) will involve Town Counsel. 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 assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). In light of the factors in G. L. c. 66, § 10(d)(iv), I find the Town may assess a fee limited to $75.00 per hour for attorney review of those records being reviewed for attorney-client privilege. 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. Additionally, I find the Town may assess a fee limited to $75.00 per hour for attorney review as described above. Please note, the requestor 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: Requestor