Kelly Jensen v. Burlington, Town of - Town Clerk (SPR 20252668)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 15, 2025 SPR25/2668 Jennifer Priest Town Clerk Town of Burlington 29 Center Street Burlington, MA 01803 Dear Ms. Priest: On September 9, 2025, this office received the petition of Leo J. Peloquin, Esq., of Norris, Murray & Peloquin, LLC, on behalf of the Town of Burlington (Town) seeking a waiver of statutory limits on fees that may be assessed in responding to a 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, Kelly Jensen, of Riot New Media. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On August 26, 2025, Ms. Jensen requested “emails between and among [five identified individuals], and the Burlington Library Trustees (...@burlingtonpl.org), between the dates of June 1, 2024 and August 26, 2025 with the following [eight identified] words[.]” Concurrent Petition This request was also the subject of a time petition submitted by the Town. See SPR25/2665 Determination of the Supervisor of Records (September 15, 2025). In my September 15th determination, I found that the Town had established good cause for an extension of thirty (30) business days. 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 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

Jennifer Priest SPR25/2668 Page 2 September 15, 2025 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). Fees in Excess of $25.00 per Hour In its petition, the Town requests to charge a fee of $75.00 per hour for attorney review, and provides the following in support of its request:

Jennifer Priest SPR25/2668 Page 3 September 15, 2025 The Town may also withhold any information exempt from disclosure under the Attorney-Client privilege. See Suffolk Const. Co. v. Div. of Cap. Asset Mgmt., 449 Mass. 444, 450 (2007). NMP charges the Town a municipal rate of $240/hour for its services as Labor Counsel. This 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. In accordance with prior SPR Decisions, the Town requests [to] charge the Requestor $75/hour for that work. 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 for segregation and redaction under the attorney-client privilege. 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. 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. Jensen within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Jensen is advised that she may appeal any subsequent response provided by the Town within 90 calendar days. See 950 C.M.R. 32.08(1). Additionally, this office encourages Ms. Jensen 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). Please note, Ms. Jensen 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).

Jennifer Priest SPR25/2668 Page 4 September 15, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Kelly Jensen Leo J. Peloquin, Esq.