Edward Wagner v. Sherborn, Town of - Town Administrator (SPR 20171052)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 9, 2017 SPR17/1052 Gregg J. Corbo, Esq. KPLaw 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, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Town furnished a copy ofthis petition to the requestor. G. L. c. 66, § 10(c), (d)(iv). Edward Wagner submitted six 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 requests numbered 5 and 6. The Town also requests that "the Supervisor authorize an extension of time and waiver of statutory limits on fees that may be assessed in connection with responding" to Mr. Wagner'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 ofthe 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. SPR17/1052 Page 2 August 9, 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 § 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 ofthe 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 to Requests 5 and 6 In its August 2, 2017 petition, the Town "requests that the Supervisor relieve it of its obligation to respond to requests numbered five (5) and six (6)." The basis of this request is that the Town believes "the requests are frivolous and clearly designed to intimidate and harass the Town in response to the requestor's separation from employment." The Town explains "request No.5 is substantively vague and temporally overbroad in that it requests copies of 'all performance related correspondence ... from the Town Administrator or members of the Board of Selectman from July 1, 2009 to April1, 2017."' For relief requested with respect to Request 6, the Town explains it "is also substantively vague and temporally overbroad in that it seeks all correspondence 'that contain information relative to the Transfer Station from August 1, 2009 and June 30, 2017."' The Town indicates "due to the broad reach of these requests, there are potentially thousands of pages of documents that will have to be reproduced, and each page will have to be reviewed for privilege and other information that is not subject to disclosure under the public records law." You assert that this will "cause significant financial and administrative burdens on the Town if it is required to respond." The Town's August 2nd response In the Town's response to Mr. Wagner on August 2, 2017 it explains that with respect to Request 5 and Request 6, "these requests are extremely vague and/or broad, such that the number of responsive documents would be entirely too large for the Town to sift through and produce." With respect to Request 5, in particular, the Town asserts "to the extent that this request refers to employee performance, the Town states that such records, other than those relating to you, fall within [E]xemption (c) to the Public Records Law and cannot be produced." The Town requests that Mr. Wagner "further define and narrow the scope of records" he is seeking.

Greg Corbo, Esq. SPR17/1052 Page 3 August 9, 2017 Under the updated Public Records Law and Access Regulations, an agency or municipality must provide a written response to the requestor within ten business days. G.L. c. 66, § 10(b); 950 CMR 36.06(2)(a)-(b). This written response may "suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably." G.L. c. 66, § 10(b)(vii). The Town's August 2nd response suggests a modification of the scope of Requests 5 and 6. Further, the Town has not established that these requests are 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. See G. L. c. 66 § 10(c). Accordingly, I decline to grant the Town's petition to relieve it of its obligation to fulfill these requests at this time. See G.L. c. 66, § 10(b)(vii). Upon receiving clarification from Mr. Wagner about the scope of his request, the Town must provide the records in a manner consistent with the Public Records Law and its Regulations. See G.L. c. 66, § 10(a)(i) (a request must reasonably describes the public record sought). Extension oft ime to produce responsive records The Town also requests "that the Supervisor authorize an extension of time" to respond to all requests. The Town explains "based on the temporal and substantive over breadth of the requests, the Town anticipates that it will require more than twenty-five business days allowed under the public records law to fully respond to all of these requests." The Town indicates "there are thousands of pages of documents responsive to these requests" and "it will take multiple town officials and employees, as well as an outside vendor, a substantial amount of time to locate all records responsive to these requests, especially those spanning the duration of 2009 to 2017." You assert that once the records are located, the "Town will need to review thousands of pages of responsive documents for redaction required to prevent unlawful disclosure." In its response to Mr. Wagner, the Town indicates it expects there may be documents exempt from disclosure under Exemptions (a), (b), and (c) under the Public Records Law G. L. c. 4, § 7(26)(a)-(c). The Town estimates it "will take a minimum of 103 hours to complete, and could potentially take much longer." The Town is requesting "that it be granted an additional fifteen business days, until September 14, 2017 to fully respond." You note the Town "will produce records on a rolling basis so as not to result in inordinate delay." I find that in light ofthe broad scope of the requests and the volume of responsive records, the Town has established good cause to permit an extension of time. I hereby grant the Town an extension of fifteen business days beyond the time allowed in G.L. c. 66, §lO(b)(vi) to furnish copies of records responsive to the request. See G. L. c. 66, § 1O (b )(vi) (a municipality may provide a timeframe not to exceed 25 business days to produce responsive records).

Greg Corbo, Esq. SPR17/1052 Page 4 August 9, 2017 Petitions for ability to assess fees The Town also requests that the statutory limit on fees for search, compilation and reproduction time be waived, and .that the Town be authorized to assess fees for segregation and redaction time. 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. 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." You further explain that "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." The Town seeks to assess a fee in excess of $25 an hour for the time spent by four individuals to comply with the request. With respect to the Town's request to assess fees for segregation and redaction time, as mentioned above, the Town expects that Exemptions (a), (b), and (c) ofthe Public Records Law may apply to withhold certain responsive records. In light of the Town's August 2nd petition and fee estimate, as well as the nature of responsive records, 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, § 10 (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 a fee in excess of $25 per hour. Conclusion For the reasons discussed above, I decline to grant the Town's request for relief of its obligation to respond to request 5 and request 6 at this time. However, 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 Acc~ss Regulations.

Greg Corbo, Esq. SPR17/1052 Page 5 August 9, 2017 Further, 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 an hour. Mr. Wagner may appeal the substantive nature of the Town's August 2nd response within ninety days. See 950 C.M.R. 32.08(1). Mr. Wagner may seek judicial review of this decision by commencing a civil action in the superior court under G. L. c. 66, § 1O A( c). Sincerely, ~~ ·Rebecca S. Murray Supervisor of Records cc: Edward Wagner