Bob Murchison v. Sherborn, Town of (SPR 20170480)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 14, 2017 SPR17/480 Gregg J. Corbo, Esq. KP Law 101 Arch Street Boston, MA 02110 Dear Attorney Corbo: I have received your petition on behalf of the Town of Sherborn (Town) seeking relief from its obligation to produce responsive records, an extension of time to produce records, and a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § lO(c); G. L. c. 66, § lO(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § lO(c). Robert Murchison submitted multiple requests for public records to the Town. The Town "requests that the Supervisor of Public Records relieve it of its obligation for providing copies of records" for eight of the requests. In the alternative, the Town "requests that the Supervisor grant an extension of time and waiver of statutory limits on fees that may be assessed in connection with responding" to Mr. Murchison's requests. 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 request and previous requests; 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

Greg Corbo, Esq. SPR17/480 Page 2 April 14, 2017 (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 § lO(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 CMR 36.06(4)(b). Request for relieff rom obligation to produce responsive records ih In its April petition, the Town indicates Mr. Murchison made twenty one public record requests from March 29, 2017 to April 6, 2017. The Town "requests that the Supervisor of Public Records relieve its obligation for providing copies of the records sought in eight of the requests." These eight requests are identified as requests 1, 2, 3, 4, 6, 8, 9 and 17 in the Town's petition. The basis of this request is that the Town believes "based on the timing, number and nature of the requests, it is clear that the requests are designed solely to intimidate or harass public officials for whom he disagrees." In correspondence with the Town dated April 8, 2017, Mr. Murchison indicates his interest in "multiple municipal responsibilities during the workday" and the use of "public town email addresses." ih Based on the information provided in the April petition and Mr. Murchison's correspondence, I find the Town has not met its burden to establish that relief of its obligation to respond to Mr. Murchison's requests is appropriate at this time. See G. L. c. 66 § lO(c). Extension of time to produce responsive records The Town also requests that if relief from obligation to produce records is not granted, then "in the alternative, that the Supervisor authorize in extension of time and waiver of statutory limits on fees" when responding to Mr. Murchison's requests. With respect to requests 1, 2, 3, 4, 6, 8, 9 and 17, the Town explains "it is expected that there are hundreds of pages of documents responsive to these requests. Each of those pages will have to be reviewed to ensure that no privileged or confidential information is released." You continue by stating "[t]his work will require the time of numerous public officials, most of whom are employed on a part-time basis and some volunteer board members." The Town "respectfully requests that it be granted an additional thirty business days to fully respond."

Greg Corbo, Esq. SPRl 7/480 Page 3 April 14, 2017 With respect to requests 5, 7, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, and 21, you indicate they "relate to numerous and varied topics and seek documents covering a long period of time. It is expected that there are hundreds of pages of responsive documents, and that many more pages will have to be reviewed in order to find and reproduce the documents that are responsive." The Town "also requests that it be granted an additional fifteen business days" to produce these records. I find that in light of the series of requests from Mr. Murchison, the volume of responsive records, and the efforts undertaken by the Town in fulfilling the current requests, the Town has established good cause to permit an extension of time. I hereby grant the Town an extension of thirty business days from the date of this determination to furnish copies ofrecords responsive to requests 1, 2, 3, 4, 6, 8, 9 and 17, or any portion thereof. The Town is granted an extension of fifteen business days from the date of this determination to produce records responsive to requests 5, 7, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, and 21, or any portion thereof. See 950 C.M.R. 32.06(4)(e). Petitions for ability to assess fees 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 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. The Town "requests that the statutory cap on fees for search, compilation and reproduction time be waived, that the Town be authorized to assess fees for segregation and redaction time, and that the Town be permitted to assess fees for this work" at the rates in excess of $25.00 an hour. I understand the Town provided a fee estimate to Mr. Murchison dated April 11, 2017 for the provision of records. In this fee estimate the Town explains "it is expected that there may be documents exempt from disclosure" under Exemptions (a), (b), (c), and (d) of the Public Records Law. G. L. c. 4, § 7(26)(a)-(d). With respect to the hourly rates, the Town indicates "[e]-mails on the Town's computer servers are maintained by an outside vendor, which charges the Town a fee of $125 per hour to search for, compile and reproduce e-mails and other records. Moreover, communications, e mails and text messages on other employee devices can only be searched for and reviewed by those employees. As such, the employees who are the subjects of the requests are the lowest-paid employees capable of doing the work."

Greg Corbo, Esq. SPR17/480 Page 4 April 14, 2017 i 11 In light of the Town's April petition and April 11th fee estimate, the Town has met its burden to explain how the request could not prudently be completed without redaction or segregation under applicable statutes. See G. L. c. 66, § IO(d)(iv). Therefore, the Town may assess a fee for the time spent to segregate and redact the requested records. However, it is unclear how the request could not be prudently completed without the redaction or segregation or fee in excess of $25 per hour. Conclusion For the reasons discussed above, I find the Town has not met its burden to establish that relief of its obligation to respond to Mr. Murchison's requests is appropriate at this time. However, the Town may assess a fee for the time spent to segregate and redact the requested records, but I decline to grant the Town's petition to charge in excess of $25 .00 an hour. Further, the Town is granted an extension of time to produce responsive records in the manner described earlier in this determination. The records must be provided consistent with the Public Records Law and its Access Regulations. Mr. Murchison may appeal the substantive nature of the Town's response within ninety (90) days. See 950 C.M.R. 32.08(1). Mr. Murchison may seek judicial review of this decision by commencing a civil action in the superior court under G. L. c. 66 § IOA(c). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Robert Murchison