Francis Di Luna v. Dartmouth, Town of - Board of Health (SPR 20180352)

The Commonwealth of Massachusetts William Francis Galvin, Secretary ofthe Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April3, 2018 SPRlS/352 Christopher Michaud Director of Public Health Town ofDartmouth 400 Slocum Road Dartmouth, MA 02747 Dear Mr. Michuad: I have received the petition of Attorney Francis A. Di Luna appealing the response of the Town of Dartmouth (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney 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." Prior determination The requested emails were the subject of a prior determination. See SPR18/236 Determination of the Supervisor of Records (March 2, 2018). In my March determination, I asked that the Town explain good cause for a 30 day extension, specifically the volume of records that must be reviewed and amount of time needed to review each record, and the need for 116 hours to produce the records. Subsequently, the Town provided a March 14th response. Attorney Di Luna appealed the supplemental response questioning the amount of documents responsive to the request as well as the time needed to review and redact the responsive records. March Ji11 supplemental response The Town provided Attorney Di Luna with a March 14th supplemental response to its petition regarding his request providing additional information in response to SPR18/236. As a basis for a 30 day extension, the Town explains "this 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 also indicates "it is important to note the King Fisher Farm consists of 18 separate Assessor's Lots. As such, searches have to be conducted for each such 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 SPR18/352 Page2 April3,2018 individual lot for this timeframe, in addition to searches for references to King Fisher in general." They explain due to the volume and scope of the records, the Town estimates it will "produce approximately 4000 responsive pages." The Town provides a detailed breakdown of where the potentially relevant records are stored, as well as an estimate of the volume of records at each source. The Town then explains the basis for the 116 hours needed for search, segregation and redaction. They estimate 58 hours in total to search for the records, not charging for the first two hours of search time. Further, the Town breaks down the hours for searching by task indicating the hourly rate associated with each. The search time totals $2119.40. The Town provides an estimate of 52 hours for segregation or redaction, and also provides a breakdown of these hours by review of emails, other electronic sources, and paper files. The segregation and redaction totals $2150.20. Including the copying costs, the total fee estimate comes to $4619.60. Attorney Di Luna questions the amount of documents needed to be reviewed for segregation and redaction. Attorney Di Luna also claims "Mr. Michaud gives an exaggerated list of documents with exaggerated times." He then lists examples of documents that he believes do not need to be reviewed for segregation and redaction, as well as sources he believes do not need to be searched for relevant documents. A member of the Public Records Division staff reached out to the Town regarding Attorney Di Luna's appeal and the Town confirmed the supplemental response reflected an accurate estimate of time needed and sources to be searched to compile the request. Conclusion I find that the Town has met its burden of explaining good cause for a 30 day extension and the need for 116 hours to produce the records. However, the approval to use the rate of $41.35 an hour was limited to the time needed to segregate and redact the responsive records. Consequently, the Town must revise the fee estimate accordingly. However, given the broad nature of the request, which encompasses numerous years, this office encourages Attorney Di Luna and the Town to communicate further to narrow the scope of this request. See G. L. c 66, § 10(a)(i). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). The Town must use its knowledge ofthe records to facilitate providing any responsive records. G. L. c. 66, §10(b)(vii) (a state agency shall 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 to produce records sought more efficiently and affordably).

Christopher Michaud SPR18/352 Page 3 April3, 2018 Sincerely, ~~ cr Rebecca S. Murray Supervisor of Records cc: Attorney Francis A. Di Luna