In our March newsletter, we reported on a statement by the Supervisor of Public Records that municipalities require her authorization to charge fees for segregation and redaction of records, unless the reason for the segregation and redaction is to withhold records under Exemption (a) of the Public Records Law (records exempted from disclosure by statute). We are pleased to report that Miyares and Harrington LLP obtained authorization for a municipality to charge for time spent by an attorney reviewing e-mails in order to segregate and redact records covered by the deliberative process exemption or attorney-client privilege, which we believe will provide helpful precedent for similar petitions on behalf of other municipalities. Miyares and Harrington submitted a petition on behalf of a Hopkinton Records Access Officer for a waiver of statutory limits on fees, pursuant to 950 CMR 32.06(4)(h), for responding to a public records request made by a development company. The company had threatened litigation against the Town in connection with its efforts to develop a parcel of land; the records sought were clearly relevant to the threatened litigation; and it was likely that many e-mails responsive to the request concerned the threatened litigation and thus were exempt from disclosure under the deliberative process exemption to the definition of “public record” or were subject to the attorney-client privilege. The Supervisor of Public Records approved the petition, agreeing with the Town that the records request was for a commercial purpose and allowing the Town to charge fees for segregation and redaction of the e-mails at a rate of $115.00 per hour (with a cap of 40 hours).
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