Herschler, Nathan v. Barnstable, Town of - Town Attorney (SPR 20260896)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 13, 2026 SPR26/0896 Allison M. Cogliano, Esq. Assistant City Solicitor Town of Barnstable 367 Main Street Barnstable, MA 02601 Dear Attorney Cogliano: On February 23, 2026, this office received your petition on behalf of the Town of Barnstable (Town) seeking a waiver of statutory limits on fees that may be assessed in responding to a public records 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, Nathan Herschler. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On February 9, 2026, Mr. Herschler requested, “all public records, including but not limited to emails, attachments, forwards, replies, calendar invites, and metadata, sent to, from, or copied on [identified email addresses].” In an email to the Town on February 24, 2026, Mr. Herschler objected to the Town’s petition. 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 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 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

Allison M. Cogliano, Esq. SPR26/0896 Page 2 March 13, 2026 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). Current Petition In its petition, the Town requests permission “to assess a fee in excess of the statutory $25.00 per hour…” In support of its request, the Town provides the following information concerning anticipated redactions: The responsive records consist primarily of internal and external municipal email communications that require careful legal review to identify and redact information excepted from disclosure, including attorney-client privileged communications and attorney work product, personal information such as home addresses, telephone numbers, personal email addresses, medical information, and other intimate details of a highly personal nature, and other legally protected information requiring legal judgment to properly segregate and redact.

Allison M. Cogliano, Esq. SPR26/0896 Page 3 March 13, 2026 Because these determinations involve the application of legal privilege and statutory exceptions, the work must be performed by an attorney in the Town Attorney’s Office. Delegation to nonlegal staff would create a substantial risk of improper disclosure of privileged or confidential information. The attorney assigned to perform this work is the lowest-paid employee capable of performing the necessary review and redaction. The attorney’s actual hourly rate, calculated from salary, is $69.39 per hour. In light of the Town’s petition, I find the Town has partially 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 of $69.39 for attorney review for segregation and redaction under the attorney-client privilege and attorney work product. 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, the Town may assess a fee limited to the hourly rate of $69.39 for attorney review. However, the Town may not assess a fee in excess of $25.00 for other tasks. Please note, Mr. Herschler 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: Nathan Herschler