Sara Cline v. Raynham, Town of - Town Clerk (SPR 20180338)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 22, 2018 SPR18/338 Edward W. Pietnik, Jr., Esq. Town Counsel Town of Raynham 180 Paramount Drive Raynham, MA 02767 Dear Attorney Pietnik: I have received your petition on behalf of the Town of Raynham (Town) seeking an extension of time to furnish copies of a requested record, or any portion thereof, as well as to charge for time spent segregating and redacting public records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Town furnished a copy of this petition to the requestor. Id. Specifically, on February 28, 2018, Sara Cline submitted two separate requests for; "[a]ll correspondence to and from all Raynham selectman, electronic or any other format from December 1, 2017 to February 28, 2018," and "[l]awsuits or settlements involving Raynham town officials in the last 20 years, since January 1998" including "the names of Raynham town officials involved in the lawsuit or settlement, their position in town, the name of the plaintiff, the complaint, the date of the complaint and the outcome." 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 needto 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

Edward W. Pietnik, Jr., Esq. SPR18/338 Page2 March 22, 2018 (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). 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). Petitions for ability to assess fees Municipalities may not assess a fee for the first two 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. 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 of Records (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 Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of$25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. Id. Current petition In its March 12,2018, petition the Town is requesting "an extension of time to furnish the requested records and to assess fees associated with the compilation and production of the requested records pursuant to 950 CMR 06(4) and (4)(e)." The Town also requests "[w]ith respect to Request No. 1 ... clarification of the request." The Town explains they "cannot provide

Edward W. Pietnik, Jr., Esq. SPR18/338 Page 3 March 22, 2018 an estimate as to production costs for records until Ms. Cline's request is clarified/narrowed with respect to the privacy exemption." The Town also claims "[m]oreover, as counsel previously requested Ms. Cline to narrow her request in light of the privacy exemption, the fact that counsel's request went unanswered demonstrates that this request is designed to intimidate or harass the Town of Raynham and not intended to publicize government activities." The Town also seeks clarification "[w]ith respect to Request No.2." The Town explains they seek "clarification of this request as there are certain lawsuits and/or settlements which may contain confidentiality provisions or have been sealed by the court, and the Town will not produce records that might violate confidentiality provisions of an agreement or court order." In regard to the second request, the Town estimates "there are possibly an excess of thirty-five (35) complaints/lawsuits and over one thousand (1000) pages to copy (100 pages@ $.05/page=$50.00). Furthermore, the older files (i.e., 1998-approx. 2002) are located in the 'vault' which requires a town employee to physically search and locate the files therein. The Town estimates time associated with retrieving and copying the documents will be approximately forty (40) hours." The Town explains they "will charge $20/hour for its employee" and estimate the total cost to be $850.00. They request "an additional thirty (30) business days to respond to Request No.2." Under the updated Public Records Law and Access Regulations, a municipality, when appropriate, can suggest a reasonable modification of the scope of the request or offer to assist the requester to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably. G. L. c. 66, § 10(b)(vii); 950 C.M.R. 36.06(2)(g). The Town provided this suggestion to Ms. Cline on March 5, 2018 but has not received a response from Ms. Cline. A Public Records Division staff member reached out to Town counsel to find out if they have received clarification of the scope but did not receive a response. Conclusion Accordingly, I find that in light of the Town's March 5th response suggesting a modification of the request it is unnecessary to opine on the Town's petition to relieve it of its obligation to fulfill the request at this time. See G.L. c. 66, § 10(b)(vii); see also G.L. c. 66, § 10 (a )(i) (a request must reasonably describes the public record sought). Upon receiving clarification from Ms. Cline about the scope of this request, the Town must provide the records in a manner consistent with the Public Records Law and its Regulations.

Edward W. Pietnik, Jr., Esq. SPR18/338 Page 4 March 22, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Sara Cline