Marilyn Schairer v. Burlington, Town of - Town Clerk (SPR 20252667)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 12, 2025 SPR25/2667 Jennifer Priest Town Clerk Town of Burlington 29 Center Street Burlington, MA 01803 Dear Ms. Priest: On September 10, 2025, this office received the petition of Attorney Leo J. Peloquin of Norris, Murray & Peloquin, LLC., on behalf of the Town of Burlington (Town) requesting permission to assess fees for time spent segregating and redacting responsive records and a waiver of statutory limits on fees that may be assessed in responding to the request. 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, Marilyn Schairer of GBH News. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On August 22, 2025, Ms. Schairer requested “[a]ny email exchanges between the Burlington Library staff or the Burlington Library Board of Trustees regarding the termination of children’s librarian [identified individual], who was terminated August 7, 2025 for ‘misconduct.’” 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). 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 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

Leo J. Peloquin, Esq. SPR25/2667 Page 2 September 12, 2025 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). Petition to Assess Fees In its petition, the Town requests permission “to charge . . . $25/Hour except for $75/Hour to protect attorney-client privilege” and provides the following information in support of its request: [I]n order to segregate and review any responsive records, the Town must conduct searches of two (2) separate email systems to segregate and review emails to determine whether there are any such records and whether any record/portion of a record is exempt from disclosure. The lowest compensated employee who can

Leo J. Peloquin, Esq. SPR25/2667 Page 3 September 12, 2025 perform this week is paid more than $25/hour. The Town requests to charge the requestor $25/hour for any such work over two hours. Fee in Excess of $25.00 per Hour In its petition, the Town requests permission “to charge $75/hour to protect Attorney- Client Privilege” and provides the following information in support of its request: [NMP] charges the Town a municipal rate of $240/hour for its services as Labor Counsel. [T]his matter involves the termination of an employee and the employee has publicized on social media that she was terminated. Some of the emails requested will have to be redacted to protect Attorney-Client Privilege. Conclusion The Town submitted its petition on September 9, 2025, more than ten business days after receipt of the request. In light of the fact that the Town has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records and a fee in excess of $25.00 per hour cannot be granted. G. L. c. 66, § 10(d)(iv); 950 C.M.R. 32.06(4)(g). Please note, however, this determination does not preclude the Town from charging for segregation and redaction that is required by law. Further, this office encourages Ms. Schairer and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(a) municipality or agency 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 or agency to produce records sought more efficiently and affordably). When preparing a fee estimate for the provision of the requested records, the Town is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Town must provide a response to Ms. Schairer within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Sincerely, Manza Arthur Supervisor of Records cc: Marilyn Schairer Leo J. Peloquin, Esq.