Stephen Parker v. Pepperell, Town of - Town Clerk (SPR 20181381)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 25,201 8 SPR1811381 Jeanne M. Survell, CMC Pepperell Town Clerk Town of Pepperell One Main Street Pepperell, MA 01463 Dear Ms. Survell: I have received your petition on behalf of the Town of Pepperell (Town) seeking 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, 5 10(c); G. L. c. 66, 5 lO(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, tj 10(c), lO(d)(iv). In a request received by the Town on September 17,2018, Stephen Parker requested "all of the correspondence of these Master Plan committee members, including cell phone records." 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, 5 lO(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, Id. redact or reproduce a record requested, but the fee shall not be more than $25 per hour. 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, 5 lO(d)(iv). See G. L. c. 66, 5 lO(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 One Ashburton Place, Room 1719, Boston, Massachusetts 02108 (61 7) 727-2832. Fax: (61 7) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Jeanne M. Survell, CMC Page 2 September 25,2018 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, 5 lO(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 Id. circumstances. In its September 17,2018 , petition, the Town is "requesting the ability to charge a fee in excess of $25 per 950 CMR 32.06(4)(h), for Town Counsel to segregate and redact records." In a supplemental response submitted by the Town on September 20,20 18 in support of a waiver of fees, the Town indicates the "requests for correspondences from and in between Department Heads.. . creates a large quantity of emails that then need to be reviewed for possible exempt information." The Town explains "[tlhe number of emails and correspondences generated by Mr. Parker's public records requests are in the hundreds. For any of the offices to segregate, review and redact all correspondences would be detrimental to their office." The Town "requests the ability to charge a fee greater than $25 an hour to $225 an hour to support our need for Town Counsel to segregate and redact information." Based on the information provided to date, I find the Town has not 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, 5 lO(d)(iv). Further, the petition does not explain why $225.00 an hour is that of the lowest paid person capable of performing the task. See G. L. c. 66, 5 1O (d)(iv) (requiring the amount of the fee must be reasonable). 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 (vi) the public interest served by expeditious disclosure.

Jeanne M. Survell, CMC Page 3 September 25,2018 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 of the records sought. JcJ. 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). The Town is "requesting an extension of thirty days (30) to supply the requested emails . . . from Stephen Parker." In its September 17'" petition, the Town asserts "Mr. Parker's request comes on the heels of a chain of emails where one of his last four public records requests was answered." In their supplemental response on September 20'" the Town indicates "[sltarting on August 20,2018 until today, September 20th, the Town Clerk's Office has received six (6) Public Records Requests from Mr. Parker." They explain "[mlost of his requests are open ended and require a lengthy amount of time for the preliminary assessment regarding the amount of materials generated to produce a good faith estimate." The Town further explains the "Town Clerk's office is staffed by myself and a twelve hour a week assistant. There is one full time IT Director, a part-time Interim Town Administrator with one full time staff in the Board of Selectmen's office. The number of emails and correspondences generated by Mr. Parker's public records requests are in the hundreds.. . any office assigned to handle this project would only be focused on competing the task at hand and would not be able to perform the functions of their office. Therefore, the Town requests additional time of thirty (30) days to compile the request for all correspondences from the Master Plan Committee, including cell phone records and all correspondences between the IT Director and the Interim Town Administrator due to the fact the Town continues to assemble information requested from previous public records requests." I find that in light of the scope of requests from Mr. Kelley, the efforts and resources available to the Town fulfilling the current request, and the Town's indication of compliance, the Town has established good cause to permit an extension of time of 15 business days beyond the 25 days after receipt of the request. G. L. c. 66, 5 lO(c)(i)-(iv). Please note the extension may begin to run once the Town receives payment. G. L. c. 66, 5 10(c) (the Supervisor may grant a single extension to a municipality not to exceed 30 business days). Conclusion For the reasons discussed above, the Town's petition to charge in excess of $25.00 an hour is not granted. See G. L. c. 66, 5 I O(d)(iv). When preparing a fee estimate for the provision of the requested records, the Town must provide an estimate made in compliance with this

Jeanne M. Survell, CMC Page 4 September 25,201 8 determination, the Public Records Law, and its Access Regulations. Mr. Parker may appeal the Town's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Further, the Town is granted an extension of time to produce responsive records in the manner described above. Mr. Parker may appeal the substantive nature of the Town's response within ninety (90) days. 950 C.M.R. 32.08(1). Please note, Mr. Parker 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, fj lO(d)(iv)(4), lOA(c). Sincerely, V Rebecca S. Murray Supervisor of Records cc: Stephen Parker