The Commonwealth of Massachusetts
William Francis Galvin, Secretary of the Commonwealth
Public Records Division
Shawn A. Williams

Supervisor ofRecords

November 10,2015
SPRlS/384
Mr. Christopher J. Petrini, Esq.
Town of Framingham- Office of Town Counsel
Petrini & Associates, P.C.
372 Union Avenue
Framingham, MA 01702
Dear Attorney Petrini:
I have received the petition ofDeborah Butler seeking further consideration of my
Determination concerning the response of Town of Framingham (Town) Board of Selectmen
(Board) to her April10, 2015 request for public records. See SPR15/384 Determination of the
Supervisor of Records (September 11, 20 15).
Specifically, Ms. Butler requested a copy of"[l]egal billing reflecting charges for legal
services performed by Chris Petrini or any attorney from Petrini & Associates, PC in connection
with open and executive sessions of the Board of Selectmen."
Subsequent to a clarification request by the Town Administrative Assistant, Ms. Butler
stated in an April 16, 2015 email that she did "not have a specific date or period of time in mind
but if one is needed you can use the legal billable from Tuesday, February 24th." In her April 10
request Ms. Butler also requested a copy of any "Board policy regarding utilization of legal
services during open and executive sessions of the Board of Selectmen."

Response dated April 23
In its April23 response the Town stated that "the Town does not have any records
directly responsive" to Ms. Butler's request for any Board policy regarding utilization of legal
services. However, the Town provided Ms. Butler with a policy entitled, "Access to Town
Counsel and Confidentiality of Attorney Client Communications."
The Town also withheld all legal billing records associated with both open and executive
session meetings of the Board's February 24,2015 meeting, citing the deliberative process
exemption to the Public Records Law as well as the
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www.sec.state.ma. us/pre

 Mr. Christopher J. Petrini, Esq.
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November 10, 2015

SPR15/384

common law attorney-client privilege. G. L. c. 4, §7 (26) (d); Suffolk Constr. Co., Inc., v. Div.
of Capital Asset Management, 449 Mass. 444 (2008).

Determination dated September 11
In my September 11 Determination, I found the Town was not obligated to create a
record in response to Ms. Butler's request because the duty of a custodian ofrecords to comply
with requests for information extends only to records that exist and are in the custodian's
custody. G. L. c. 4, § 7(26) (defining "public records" as those non-exempt materials made or
received by a public employee).
In addition, I found the Town had not met its burden of specificity required to justify
withholding a record in its entirety under Exemption (d) of the Public Records Law. I further
found the Town failed to prove that every notation of detail within the content of the requested
"charges for legal services" is an attorney-client privileged communication.
As a result, I ordered the Town to provide Ms. Butler with the requested records or a
written explanation, with specificity, how a particular exemption applies to each record if it
maintains that any portion of the responsive records are exempt from disclosure.

Response to the September 11 Determination
In response to the September 11 Determination, the Town provided a letter to Ms. Butler
dated October 1, 2015. With regard to Exemption (d), you state on behalf of the Town that "[a]s
neither your Open Meeting Law Complaint nor the Avidia Bank matter are still pending,
Exemption (d), which was cited in the Town's original response on April23, 2015, no longer
applies to these records."
With regard to the common law attorney client privilege, you state "the requested invoice
entries will need to be reviewed and partially redacted because the entries contain attorney-client
privileged material. ... " You explain that the requested entries "contain or refer to advice
provided by Town Counsel to the Town or requests for advice from the Town to Town Counsel.
The advice and requests for advice were made in confidence by Town Counsel and the
employee(s) involved. Further, the Board of Selectmen, as holder of the Town's attorney-client
privilege, has not waived the privilege with respect to the communications referenced in the
entries." You claim that, as a result, some entries are attorney-client privileged information that
is exemption from disclosure and you cite Suffolk Constr. Co. v. Div. of Capital Asset Mgmt.,
449 Mass. 444 (2007) to support this claim.

Fee estimate
The Town provided Ms. Butler with a fee estimate of $42.40 for the provision of the

 Mr. Christopher J. Petrini, Esq.
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responsive records. A custodian of records may assess a reasonable fee for complying with a
request for public records. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of
complying with a request for public records is expected to exceed ten dollars ($10.00), custodian
of records shall provide written good faith estimate).
Absent specific statutory authority to the contrary, the fees to be charged for complying
with requests for public records are established by the Public Records Access Regulations
(Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a .
custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy
of a public record and fifty cents ($.50) per page for a computer printout of a public record. See
950 C.M.R. 32.06(1)(a).
In addition to the copying fee, the Regulations provide that in cases where search or
segregation time is necessary a custodian of records may charge a pro-rated fee based on the
hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R.
32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the
file, copy and refile public records, and "segregation time" as the time used to redact data that is
exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must
reflect the actual cost of complying with a particular request. G. L. c. 66, § 1O(a).
You explain that the costs are associated with the need for Town Counsel to review the
records and redact any privileged information. Specifically, you state the "segregation costs at
the lowest hourly rate of an associate in my office ($21 0.00 per hour) are estimated to be $42.00,
which is based on an estimate of 0.2 hours to review the particular entries requested and
detennine what portions of the entries are privileged." You also include a copying fee of $0.40
based on two (2) pages of responsive records at $0.20 per page.
Ms. Butler objected to this fee estimate in a letter to this office dated October 6, 2015. In
response, the Town provided a letter dated October 9, 2015 in which you provided a further
explanation to justify the $42.40 fee estimate. Ms. Butler was copied on this letter. Specifically,
to justify the hourly rate, you state "[t]he determination of a privilege is not a task that can be
performed by an administrative assistant. Attorney review is necessary." You further clarify
that the Town did not previously review and redact the responsive records because the Town's
initial position was to withhold the records in their entirety.

Conclusion
In light of the Town's October 1 and October 9 letter, I find the Town has met its burden
of explaining the amount of time needed to perform the task, that it used the hourly rate of the
lowest paid person capable of performing the task of segregation, and how it calculated the

 Mr. Christopher J. Petrini, Esq.
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copying costs. Accordingly, I find the Town's $42.40 fee estimate to be reasonable under the
Public Records Law and its Regulations. Upon payment of the fee, the Town is hereby ordered
to provide the records in a timely manner.

cc: Ms. Deborah Butler
Mr. Robert J. Halpin