Joseph A. Negri v. Swampscott, Town of - Town Clerk (SPR 20252575)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 4, 2025 SPR25/2575 Jared LaLiberte Town Clerk Town of Swampscott 22 Monument Avenue Swampscott, MA 01907 Dear Mr. LaLiberte: On August 29, 2025, this office received your petition on behalf of the Town of Swampscott (Town) seeking a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Town furnished a copy of the petition to the requestor, Joseph A. Negri. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On August 21, 2025, Mr. Negri requested: [1] All digital or hard copy documents of the Town of Swampscott on the subject of water testing regarding the Lynn/Swampscott UV Pilot Program[;] [2] Any and all reports, e-mail messages, letters, correspondence, and other communications between and among the Town of Swampscott officers and officials, supporting staff, the City Manager, City Solicitor, or other city employees or board or commission members by, to, from or between the parties listed above on the subject of Test Data[;] [3] Any Test Data assessments, analyses, opinions, measurements, printouts, screen shots, or results in any form and any deployment of Test Data measuring devices handheld or fixed on directly or indirectly by or for the Town of Swampscott, including all testing data collected from April 1, 2025 to date. 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 representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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

Jared LaLiberte SPR25/2575 Page 2 September 4, 2025 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 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 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).

Jared LaLiberte SPR25/2575 Page 3 September 4, 2025 Fee in Excess of $25.00 per Hour In its petition, the Town requests permission “to assess fees for this work at the rate of $75.00/hour for the privilege review to be conducted by Town Counsel…” and provides the following in support of its request: In this instance, based on the Town’s initial review of this request, which seeks communications involving the Select Board Chair and the topics provided, the Town anticipates that several of the requested records will relate to matters for which Town Counsel has been involved relating to the attorney-client relationship, as well as executive session material pursuant to the Open Meeting Law, G.L. c. 30A, protected by Exemption (a) of the Public Records Law. Without an adjustment in the statutory rate, the Town will incur significant financial cost if it is required to pay its attorney the full Town Counsel rate to respond to this request which implicates confidential matters. [T]he Town states that there is good cause for permitting the Town to charge the below cost estimate because Town Counsel is the lowest paid employee capable of reviewing all such records for necessary redactions for attorney-client privilege, attorney-client work product, and other related legal and policy considerations. Accord SPR 22/2793 (approving fee estimate where attorney was only employee “with the necessary skill to determine whether the attorney-client privilege requires certain portions of the records … to be redacted” and “whether other exemptions apply”). Additionally, here, the cost estimate has been reduced from the “actual cost” of responding to the request but has been reduced to $75.00/hour for purposes of demonstrating that the fee estimate is made in good faith and in an attempt to be reasonable, and is not designed to limit, deter, or otherwise prevent any access to the non-exempt or confidential records, but rather, to partially compensate the Town for the actual costs of complying with the request. 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). The Town may assess an hourly rate limited to $75.00 for attorney review. However, the Town may not assess a fee in excess of $25.00 per hour for other tasks. G. L. c. 66, § 10(d)(iii) Conclusion As described above, the Town may assess a fee limited to $75.00 per hour for attorney review. This office encourages Mr. Negri and the Town to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii).

Jared LaLiberte SPR25/2575 Page 4 September 4, 2025 Please note, Mr. Negri 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: Joseph A. Negri