William Wilson v. Pelham, Town of (SPR 20253062)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 27, 2025 SPR25/3062 Melissa A. Hibbard Town Clerk Town of Pelham 351 Amherst Road Pelham, MA 01002 Dear Ms. Hibbard: On October 20, 2025, this office received the petition of Michael D’Ortenzio Jr, Esq., of KP Law, P.C, on behalf of the Town of Pelham (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 requestor, William Wilson. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). In two separate requests, on October 3, 2025, Mr. Wilson requested: [1] [I]nvoices received and payment information made from the Town of Pelham for legal municipal services provided by any entity listed below or not yet identified but contracted… related to the case number# 23cv0081 or complaints rendered by the Town of Pelham, Ma. 01002, anything relating to [two identified individuals] … Buffam Road, Pelham, Ma. 01002 or Buffam Brook Farm… from 1 Jan 2019 to [p]resent[;] [2] [A] full account of the total amount of hours worked and amount paid for any and all services rendered in whatever titled capacity, for [an identified individual] for all services provided or work performed for the town of Pelham, Ma. 01002, relating to [two identified individuals] … Buffam Road Pelham, Ma. 01002 or Buffam Brook Farm from 1 Jan 2019 through [p]resent for the Town of Pelham. It is my understanding that the Town’s petition concerns only request one. Please note that in an email to the Town and this Office on October 24, 2025, Mr. Wilson objected to the Town’s petition. 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

Melissa A. Hibbard SPR25/3062 Page 2 October 27, 2025 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 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).

Melissa A. Hibbard SPR25/3062 Page 3 October 27, 2025 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, in addition to charging for segregation and redaction required by law under Exemption (a) and the attorney-client privilege, the Town requests permission to charge for segregation and redaction under Exemptions (c), (o) and (p) of the Public Records Law. In a correspondence enclosed alongside its petition, the Town argues the following in support of its request: Exemption (c)… Should potentially responsive records contain references to confidential personnel and medical information, such records may be redacted after a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). The Town will assess the weight of the privacy interests at stake, namely, (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities, (2) whether the materials sought contain intimate details of a highly personal nature, and (3) whether the same information is available from other sources, in making its determination. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). To the extent that the records contain personal or medical information, such information may be redacted pursuant to Exemption (c). Certain responsive records may also be redacted or withheld pursuant to Exemption (o) to the Public Records Law, G.L. c.4, §7(26)(o).… To the extent that the records contain the home address, personal e-mail address, and home telephone number of employees of the Town, such records will be withheld. Certain responsive records may also be redacted or withheld pursuant to Exemption (p) to the Public Records Law, G.L. c.4, §7(26)(p).… To the extent that the records contain the home address, personal e-mail address, and home telephone number of family members of employees of the Town, such records will be withheld. 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). Fees in Excess of $25.00 per Hour In its petition, the Town requests permission to charge a fee of $75.00 per hour, and provides the following in support of its request:

Melissa A. Hibbard SPR25/3062 Page 4 October 27, 2025 Here, the legal invoices at issue relate to matters under active litigation, including with the requestor. As such, the invoices must be reviewed and redacted to remove privileged information. Without an adjustment in the statutory rate, the Town will incur significant financial cost if it is required to pay Town Counsel the full rate of $245.00/hour to respond to this request that implicates confidential matters. As grounds for this petition, therefore, the Town states that there is good cause for permitting the Town to charge $75.00/hour for Town Counsel services 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 SPR22/2793 (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” an “whether other exemptions apply”). Additionally, here, the cost estimate has been reduced from the “actual cost” of responding to the request, as Town Counsel’s rate is $245.00/hour 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 requests. Based on the information provided in 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. 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 Accordingly, to the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction. Further, the Town may assess a fee limited to $75.00 per hour for attorney review. This office encourages Mr. Wilson 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). Mr. Wilson is advised that he may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Wilson 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, §§ 10A(c).

Melissa A. Hibbard SPR25/3062 Page 5 October 27, 2025 Sincerely, Manza Arthur Supervisor of Records cc: William Wilson Michael D’Ortenzio Jr, Esq.