Francis Di Luna v. Dartmouth, Town of - Board of Health (SPR 20180236)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 2, 2018 SPRlS/236 Christopher Michaud Director of Public Health Town of Dartmouth 400 Slocum Road Dartmouth, MA 02747 Dear Mr. Michuad: I have received your petition on behalf of the Health Department of the Town of Dartmouth (Town) for 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 of this petition to the requestor. G. L. c. 66, § 10(c). In a request received by the Town on February 16, 2018, Attorney Francis A. Di Luna requested "copies of all public records as defined in M. G. L. c.4, §7 received or transmitted by the Town of Dartmouth, Office of Public Health, since January 1, 2010 relating to King Fisher Farm." 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; (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 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

Christopher Michaud SPR18/236 Page 2 March 2, 2018 (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requester within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Extension oft ime to produce responsive records The Town requests "an extension of 30 business days for responding to Attorney Di Luna's records request, in addition to the 25-business day default statutory maximum." In support of an extension, the Town states "[t]his request deals with all potential records over more than 7 years for a large, active commercial property with a history of health-related issues and investigations." The Town implicates Exemptions (d) and (f) explaining "[t]he breadth of records that have been sought include ongoing enforcement investigations regarding the composting and other operations at King Fisher Farm, as well as ongoing policy deliberations regarding composting operations and garbage transportation in the Town." The Town further explains "[a]s a result ofthat scope, as well as the potential extensive segregation and redaction of those records," they estimate that the Director of Public Health "will spend 96 hours on this matter" and the "Administrative Clerk will spend at least 20 hours on this matter." They indicate "the volume of hours precludes the completion of any response to this records request within the default statutory timeframe without severely stressing the functionality and proper operation of the Dartmouth Health Department." I find that in light ofthe broad scope of the request, the Town has established good cause to permit an extension of time. G. L. c. 66 § 10(c)(i)-(iv). However the Town must provide more information to show good cause for a 30 day extension, specifically the volume of records that must be reviewed and the amount of time needed to review each record. Petitions for ability to assess fees 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, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. Municipalities may not assess a fee for the first (two) 2 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 under a petition under G. L. c. 66, § 10 (d )(iv).

Christopher Michaud SPR18/236 Page 3 March 2, 2018 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 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). The Town is requesting they be "permitted to charge for search, segregation and redaction of these records at an hourly rate of $41.35." You explain as "the chief enforcement agent for the Dartmouth Board of Health, only I have the comprehensive knowledge of these matters that is necessary in order to determine both the location of most records and which records would fall within these exemptions." The Town explains that along with the request implicating Exemptions (d) and (f), "many ofthese records are protected by attorney-client privilege." The Town indicated the records include "enforcement investigations" as well as "ongoing policy deliberations." They also note, "a minority of the searching, as well as all compiling/copying of produced records, will be undertaken by my Administrative Clerk at the statutory minimum rate of $25 per hour." The Town emphasizes "the records requester, Francis Di Luna, Esq., is counsel for King Fisher Farm" and therefore the Town needs to "ensure that this request is not utilized for the purpose of, or simply does not inadvertently result in, undermining the integrity and confidentiality of ongoing Town actions with respect to the commercial operations location." Further, they note "the requester, as well as his commercial client, are not without the financial means to pay for the proposed increased rate." The Town indicates they reached out to Attorney Di Luna informing him that "he may narrow the scope of his search in order to reduce these costs." The Town has not received a response from Attorney Di Luna regarding narrowing the scope of his request. In light of the Town's February 23rd petition, the Town has met its burden to explain how the request could not prudently be completed without redaction or segregation under applicable law at the rate of $41.35 an hour. 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, the Town has not demonstrated the need for 116 hours to produce the records. See G. L. c. 66, § 1 0( d)(iv) (requiring the amount of the fee must be reasonable). Conclusion When preparing a fee estimate for the provision of the requested records, the Town must reduce the amount of time charged for producing the records, or provide more detail explaining why this amount of time is necessary. Attorney Di Luna may appeal the Town's fee estimate within ninety days. See 950 C.M.R. 32.08(1 ). Please note the requestor 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, § 1 OA.

Christopher Michaud SPR18/236 Page 4 March 2, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Francis Di Luna, Esq.