Pat Ward v. Brookline, Town of (SPR 20181044)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

July 24, 2018 SPR18/1044

Patrick J. Ward

Town Clerk

Town of Brookline

333 Washington Street, Room 104 Brookline, MA 02445

Dear Mr. Ward:

I have received your petition on behalf of the Town of Brookline (Town) for an extension of time to produce records and to charge for time spent segregating or redacting public records in

responding to a request made by Attorney Susan Murphy representing Pine Manor College. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Town provided a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv)(2). Attorney Murphy requested various records from February 1, 2018 through the date of the request pertaining to Pine Manor College, including land records and consultant documentation, as well as “any and all public body(ies) authorized to enter into contracts with any and all of the Consultants described in Item 1.”

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;

(iti) 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

Patrick J. Ward ; SPR18/1044 Page 2 July 24, 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 requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b).

Extension of time to produce responsive records

The Town “requests an extension of time of 30 business days from the date of this petition to respond to the request.” In support of an extension, the Town states “[t]he scope of the request, the volume of the potentially responsive materials and the need to segregate exempt

material means that an appropriate response will require significantly more time than is provided for by G.L. c. 66.”

In response to the Town’s petition, Attorney Murphy indicates “we do not object to the single extension that may be granted by your office pursuant to G.L. c. 66, 10(c).”

I find in light of the July 18" email in which the requestor indicates they do not object, the Town is granted the requested extension.

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, § 10(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 of Records under a petition under G. L. c. 66, § 10(d)(iv).

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 under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iti); 950 C.M.R. 32.06(4).

In its June 16" petition, the Town “believes it should be allowed to charge for time spent segregating and redacting these records, and requests approval of the Supervisor to do so pursuant to G.L. c. 66, §10(d)(iv) and 950 CMR 32.06(4)(g).” In support of charging a fee for segregation and redaction, the Town states “[a] preliminary search of the Town’s files has

Patrick J. Ward SPR18/1044 Page 3 July 24, 2018

identified more than 5,000 potentially responsive e-mails, along with numerous additional materials that will need to be reviewed to insure we are responding fully to the request” The Town indicates “[t]hese materials include records that fall into one of the applicable exemptions to the definition of “public records” found in G.L. c.4, §7, clause twenty-sixth, such as being subject to the attorney-client privilege or because they represent attorney work product.”

Given that the responsive records include attorney-client privilege materials, the Town has met its burden to explain how the request could not prudently be completed without redaction or segregation under applicable law. 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 56 hours to produce the records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable),

Conclusion For the reasons discussed above, the Town’s requested extension of time is approved.

Additionally, the Town is allowed to charge for the time to segregate and redact the requested records, but it must confirm how it calculated the amount of time needed to produce the records. 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 Murphy 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, § 10A.

Alsen

Rebecca S. Murray Supervisor of Records

ce: Susan Murphy, Esq.