Timothy Hovasse v. Burlington, Town of - Town Administrator (SPR 20253767)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 29, 2025 SPR25/3767 Leo J. Peloquin, Esq. Town Counsel Town of Burlington 29 Center Street Burlington, MA 01803 Dear Attorney Peloquin: On December 22, 2025, this office received your petition on behalf of the Town of Burlington (Town) seeking an extension of time to produce 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, I understand that the Town furnished a copy of this petition to the requestor, Timothy Hovasse. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 17, 2025, Mr. Hovasse requested “[a]ll communication, including but not limited to text, email, and written correspondence between [three identified individuals], Town Administration, Town Council and any others that were contacted regarding me and my injury… from July 6, 2024, to the date this request is processed.” In an email to this office on December 26, 2025, Mr. Hovasse objected to the Town’s petition. Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current 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 SPR25/3767 Page 2 December 29, 2025 request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(b). Request for Additional Time to Produce Responsive Records In its petition, the Town requests an extension of 30 business days and provides the following information in support of its request: In order to identify any responsive records, employees from more than one Town Department will have to search for, segregate and review emails, text messages and documents and make any necessary redactions. Further, I will have to review documents to determine if the document or any information in the document is exempt from disclosure under the attorney-client privilege and, if so, make the necessary redactions. It will take a substantial number of hours to do the work… Given what has to be done to respond to Hovasse’s request for documents, it is not reasonable to expect it to take place within the statutory timeframe. An extension will also provide additional time for Town and Mr. Hovasse to discuss narrowing the scope of his request to reduce the costs to him and the Town to give him the documents it is required to provide. Therefore, the Town requests an additional thirty (30) business days to further respond to Hovasse’s request. I find that in light of the need to search for, collect, segregate and examine the records, in conjunction with the capacity of the Town to produce the request without the extension, the Town has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The Town is granted an extension of 30 business days. Petition to Assess Fees – Municipalities The Supervisor of Records (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

Leo J. Peloquin SPR25/3767 Page 3 December 29, 2025 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. 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 determination 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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).

Leo J. Peloquin SPR25/3767 Page 4 December 29, 2025 Fee in Excess of $25.00 per Hour In its petition, an attorney for the Town argues the following: To comply with his request, there are numerous records that have to be segregated, reviewed and/or redacted. Several Town employees will have to go through emails, text messages and other documents. All of these employees are paid more than $25/hour. Under the Public Records law, the Town can withhold any information from records that is exempt from disclosure under the attorney- client privilege. Hovasse’s request expressly requests records that include communications with me… None of the Town employees are qualified to do this part of the work. The Town will be paying me to review and redact the documents to ensure that the privileged information is not provided… To the extent that a review of a record(s) is required to ensure that information protected by the attorney-client privilege is not disclosed, the Town requests to charge $75/hour for that work. That is only a portion of the $240/hour that my firm, Norris, Murray and Peloquin, charges the Town for its legal services… To the extent that a record includes or references communications with me, none of the Town employees have the expertise to determine whether the information is exempt from disclosure under the attorney-client privilege. Therefore, the Town requests to charge Hovasse $75/hour for that work. Based on its petition, I find the Town has met its burden to explain how, given the nature of certain 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). I find the Town may assess a fee limited to $75.00 per hour for the attorney review by Town Counsel as described above. Conclusion Accordingly, I find the Town has established good cause for a time extension of 30 business days as described above. Further, as described above, the Town may assess a fee limited to $75.00 per hour for attorney review. This office encourages Mr. Hovasse 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) (a municipality shall suggest a reasonable modification to 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 records sought more efficiently and affordably). Any subsequent fee estimate from the Town must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Hovasse 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),

Leo J. Peloquin SPR25/3767 Page 5 December 29, 2025 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Timothy Hovasse