Michael P. Cronin, Esq. v. Melrose, City of - City Solicitor (SPR 20252468)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 3, 2025 SPR25/2468 Shannon Phillips, Esq. City Solicitor City of Melrose 562 Main Street Melrose, MA 02176 Dear Attorney Phillips: I have received the petition of Michael P. Cronin, Esq. and Christopher R. Agostino, Esq., of Ruberto, Israel & Weiner, appealing the response of the City of Melrose (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 23, 2025, Attorney Agostino requested: [1] All E-mail communications from January 1, 2023 to the present that concern, evidence, or relate to the real property located at …Greenwood Street, Melrose, Massachusetts, and were sent to, sent from or copied (cc or bcc) the following [identified individuals] and/or any members of the Zoning Board or Planning Board. [2] All E-mail communications from January 1, 2023 to the present that concern, evidence, or relate to the real property located at …Tremont Street, Melrose, Massachusetts, and were sent to, sent from or copied (cc or bcc) the following [identified individuals] and/or any members of the Zoning Board or Planning Board. [3] All E-mail communications from January 1, 2023 to the present that concern, evidence, or relate to the real property located at …Essex Street, Melrose, Massachusetts, and were sent to, sent from or copied (cc or bcc) the following [identified individuals] and/or any members of the Zoning or Planning Boards. [4] All E-mail communications only from January 1, 2023 to the present that concern, evidence, or relate to the real property located at …Summit Avenue, Melrose, Massachusetts, and were sent to, sent from or copied (cc or bcc) 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

Shannon Phillips, Esq. SPR25/2468 Page 2 September 3, 2025 following [identified individuals] and/or any members of the Zoning Board or Planning Board. The City responded on August 6, 2025, assigning the request reference number 25-128 and providing a fee estimate. Unsatisfied with the City’s response, Attorney Cronin and Attorney Agostino petitioned this office and this appeal, SPR25/2468, was opened as a result. While this appeal was pending, the City provided a supplemental response on August 27, 2025. 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). The City’s August 6th and August 27th Responses In its August 6, 2025 response, the City provided a fee estimate of $840.00 to provide the responsive records. In support of the fee estimate, the City stated as follows: The City’s multiple system searches of its archiver email system for responsive records to your search yielded 4,152 emails for the addresses requested. Please note, this search was done within the confines of the City’s archiver system and very likely includes duplicate emails within these results... In municipalities such as Melrose with over 20,000 persons, requestors are entitled to two (2) hours of time spent searching for, compiling, segregating, redacting, and reproducing records at no cost to them; all other time involved in responding to a public records request may be subject to a fee…The City estimates it will take approximately 30 seconds per email to fully review, segregate, redact and produce responsive records to your requests, and factoring in two free hours of work, that leaves 33.6 hours of time remaining. Any personnel in the Legal Department

Shannon Phillips, Esq. SPR25/2468 Page 3 September 3, 2025 (consisting only of myself and the Assistant City Solicitor) have an hourly rate over $25.00/hour and therefore the $25 must be charged. Therefore, the City’s total good faith cost estimate is $840 (33.6 hours x $25 = 840)… You may also wish to consider narrowing the scope of your request by including search terms within the e-mail communications or in the “to” or “from” lines of the e-mails. In its supplemental response on August 27, 2025, the City revised its total fee estimate to $815.00 and stated as follows: In double checking the fee estimate upon receipt of this appeal, it appears the requestor should actually have been charged only for 32.6 hours not 33.6 hours (when taking into account 2 free hours of work)… In addition, the City would like to confirm that the 4,152 emails that were the result of an archive email system search for the real property addresses requested (some emails likely consisting of multiple pages with attachments) need to be reviewed to determine what portions are subject to redaction or withholding. Given the broad nature of this search and request, and the fact that all of these real property addresses requested by the Petitioner were or currently are the subject of cases or litigation before the City of Melrose Planning Board, Zoning Board of Appeals, Land Court, Superior Court or Housing Appeals Committee during the time period requested, many of these emails will contain attorney-client privileged communications, which by law, are not public records. Segregation or redaction pursuant to attorney-client privilege has been found to be “required by law” under Exemption (a) of the public records statute… Given the voluminous number of emails this search has returned, and the likelihood that many of these emails contain attorney-client privileged communications related to the cases or litigation brought against the City, the City needs to charge this good faith estimate to review these records and determine what portions are subject to redaction or withholding. Current Appeal In their appeal petition, Attorney Cronin and Attorney Agostino stated, “[w]e respectfully request that the Supervisor of Records order the City to produce the 4,152 email records that are responsive to the [r]equest without the assessment of any fees.” In an email dated September 2, 2025, Attorney Cronin provided the following supplemental information: The City’s initial response to our public records request dated August 6, 2025… failed to provide “specific reason(s) for such withholding” and did not “provide the specific exemption or exemptions upon which the withholding is based.” In fact, the first mention of the attorney-client privileged information exemption was

Shannon Phillips, Esq. SPR25/2468 Page 4 September 3, 2025 not cited by the City until the RAO’s Response, well after the 10-business day response requirement… Had the City provided the specific reason for withholding and reference the specific exemption in their Initial Response, they would have been in compliance with the applicable public records law. However, because they did not do so, the City is outside of its purview by assessing fees for the segregating and redacting of our initial Public Records Request. The City responded on the same day and stated: …[N]othing in Massachusetts Public records law requires the City cite specific exemptions it plans on using in the documents in question when providing a good-faith fee estimate to the requestor in order for a fee estimate to be valid. The City did provide a supplemental response with good faith, factual reasons (which have been entirely undisputed by the Requestor here) as to why attorney-client privilege will be an issue in many of the documents… Further, there is no good faith argument to be had here that the City failed to submit to the Requestor its response within 10 business days as is allowed for by law, and doing so does not require prior approval of the Supervisor of Public Records. Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under [G. L. c. 66, § 10(b)].” Where Attorney Agostino submitted his request on July 23, 2025 and the City provided its initial response and good faith fee estimate on August 6, 2025, I find the City complied with G. L. c. 66, § 10(e) by providing a timely response to Attorney Agostino’s request.

Shannon Phillips, Esq. SPR25/2468 Page 5 September 3, 2025 Accordingly, I find this portion of Attorney Cronin and Attorney Agostino’s appeal is resolved. Where the City provided a response within 10 business days, however, it is necessary to review the reasonableness of the City’s fee estimate. Reasonableness of the Fee Estimate Where the City has explained the amount of time it requires to locate, segregate, and redact the requested records as required by law, and has confirmed that the lowest paid individual with the skill necessary to perform those tasks is paid more than $25.00 per hour, I find that the City has met its burden to establish that it would take this amount of time to produce the responsive records. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). Please be advised segregation or redaction under the attorney-client privilege is interpreted to be “required by law.” This office encourages the parties to communicate to facilitate providing records more efficiently and affordably. Attorney Cronin and Attorney Agostino may wish to narrow their request. 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, I will now consider this administrative appeal closed. If Attorney Cronin and Attorney Agostino are not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Michael P. Cronin, Esq. Christopher R. Agostino, Esq.