Christopher Hall v. Rockland, Town of - Town Administrator (SPR 20181448)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 5, 2018 SPRlS/1448 Christopher Kenny, Esq. Clifford & Kenny, LLP 31 Schoosett Street, Suite 405 Pembroke, MA 02359 Dear Attorney Kenny: I have received your petition on behalf of the Town of Rockland (Town) seeking relief from its obligation to produce responsive records. G. L. c. 66, § lO(c); 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 ) . This petition relates to requests made by Deirdre Hall and Christopher Hall (the Halls). 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. G. L. c. 66, § lO(c). 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 Kenny, Esq. SPR18/1448 Page 2 October 5, 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. Id. 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 ). Current petition In the Town's September 28, 2018 petition you explain that the Halls submitted "six (6) separate requests in an approximate one (1) month time period." You explain that "the Town has already issued responses and relevant public records to the public records requests submitted by the Halls on August 16, August 20 and August 21 of 2018 (See Exhibits 2-4). The Town has since received three (3) additional public records request from the Halls on September 15 and 17, 2018 (See Exhibits 5-7)." I understand the Town provided the Halls a response to these three additional requests on September 28, 2018. The Town refers to the August 16, 2018 request for video surveillance as an example of the frivolous and harassing nature of these requests. You assert that this video has "already been widely published by numerous news outlets (the requested video surveillance is related to the incident between Ms. Hall and Town Administrator Allan Chiocca)." You further note "the Halls already had access to such video and there was no need for such record request. Also, as Ms. Hall had attempted to block the video from being released, the Halls have zero intention of ever disseminating such video to the public." The Town concludes by asserting "[a]s it is the position of the Town that the remaining requests are frivolous, designed to intimidate and harass and are not intended for broad dissemination of information to the public about actual or alleged government activity, the Town is respectfully requesting that the Supervisor of Records relieve the Town of its obligation to provide copies of the records sought in the remaining three (3) public records request from the Halls on September 15 and 17, 2018 (See Exhibits 5-7)." Ms. Hall submitted a response to the Town's petition on October 1, 2018. In this correspondence she references an "Investigative Report" and explains she sought surveillance videos because "[t]he Investigative Report contains other Findings that can be verified or refuted through review of surveillance." Ms. Hall also notes "in all of our public records requests my husband and I have requested that the Town contact us with any questions or concerns. Neither Chris nor I received any correspondence from the Town or its attorneys indicating that our requests were burdensome or problematic prior to Attorney Kenney filing this petition with the Supervisor of Records ...." Ms.Hall further indicates they "would be more than willing to agree to time extensions and fees when and where it is necessary."

Christopher Kenny, Esq. SPR18/1448 Page 3 October 5, 2018 Based on the information provided in its petition, I find that the Town has not met its burden to demonstrate how this request is "part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass," particularly in light of the narrow nature of the requests and the types of records sought. Cf. Erickson v. Exec. Office ofEnvtl. Affairs, 2006 Mass. Super LEXIS 476 (Aug. 4, 2006) (finding that requests were made solely to harass because they were overly broad and, in some cases, unlimited in time and that the plaintiff was abusive to the Court and its staff as well as harassing to the opposing party). Further, the Town has not shown how the requests, which pertain to videos, legal invoices to the Town, and a personnel timesheet, "are not intended for the broad dissemination of information to the public about actual or alleged government activity" as required by G. L. c. 66, § lO(c). It should be noted that the Town may submit a petition for additional time to produce public records under G. L. c. 66, § lO(c). It may also submit a petition to assess fees for the time spent redacting and/or segregating responsive records under G. L. c. 66, § lO(d)(iv) within ten business days ofreceipt of the request. See 950 C.M.R. 32.06(4)(g). Prospective requests Based upon a review of the file, Mr. Hall's request from September 15, 2018 seeks "a copy of Clifford & Kenney's monthly legal invoice to the Town of Rockland dated on or about September 7, 2018. Furthermore, I respectfully request that you treat this request as a continuous public records request and provide me with a copy of all future Clifford & Kenney invoices until this request is revoked in writing." Please be advised that the Public Records Law does not require a custodian to honor a prospective request. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). Conclusion For the reasons described above, the Town must provide responses to the requests at issue in accordance with G. L. c. 66, § lO(a)-(b). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Deirdre Hall Christopher Hall