Catherine Clairmont v. Edgartown, Town of - Town Clerk (SPR 20190016)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 9, 2019 SPR19/0016 James M. Hagerty Town Administrator Town of Edgartown 70 Main Street PO Box 5158 Edgartown, MA 02539 Dear Mr. Hagerty: I have received your petition on behalf of the Town of Edgartown 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, § lO(c); G. L. c. 66, § 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, § lO(c). The Town indicates they have received several requests from Catherine Clairmont, including communications between individuals and the Waste Water Department. 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-s-ame-rnque-s-te-F,i-s-:fFi-ve-le-us-0-F-i-nte--ndoo-t-0-aar-a-s-s-er-i-ntimiGatg_t:OO--a-g~-0,+------ municipality; and (vi) the public interest served by expeditious disclosure. 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

James M. Hagerty SPR19/0016 Page 2 January 9, 2019 G. L. c. 66, § lO(c). The Town requests "a global extension of the response time to the 21 December, 26 December (x2), and 27 December requests to January 23, 2019." In support of an extension, the Town states "to date the Town has produced multiple audio recordings and over 1200 pages of documents." They indicate "[t]he Town has received Public Records requests on the following dates from Mr. Kager and Ms. Clairmont in recent weeks: 28 October; 11 November; 30 November; 3 December; 5 December; 18 December; 20 December; 21 December; 26 December (x2); and 27 December." In light of the Town's January 2nd petition, I find it is unnecessary to opine on the Town's extension request because it intends to provide responsive records within twenty five (25) business days of the receipt of the request as allowed in G. L. c. 66 § lO(b)(vi). The Town is advised it must seek another petition for extension if it cannot provide responsive records within twenty five (25) business days of the receipt of the request. G. L. c. 66 § lO(c). Petitions for ability to assess fees The Supervisor of Records (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. G. L. c. 66, § 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 circumstances. G. L. c. 66, § 10(d )(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § lO(d)(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. --~Ih~Io~tate&~'iLwo~uld~appeaLthaUherequest~am_aimed~at~urtheri~~cnmm~cia~------- operation." The Town explains "[t]he Clairmonts are seeking approval from the Town's Wastewater Commission to run a sewer line to their property, which has a deed restriction that

James M. Hagerty SPR19/0016 Page 3 January 9, 2019 only allows for a 4 bedroom residence unless serviced by a town sewer line." Further, the Town explains " the Clairmonts advertise their seasonal residence as a five bedroom rental with a high season weekly rate $21,500" and "the requestor has solicited neighbors for a 'Right to Connect' through a trust with an incremental pricing framework." The Town requests "to charge the overtime rate of the Waste Water Department Head ($75.00/hr), as he is the person most suitable to oversee the necessary search and segregation time." The term "commercial purpose" as used in this section shall mean: the sale or resale of any portion of the public record or the use of information from the public record to advance the requester's strategic business interests in a manner that the requester can reasonably expect to make a profit, and shall not include gathering or reporting news or gathering information to promote citizen oversight or further the understanding of the operation or activities of government or for academic, scientific, journalistic or public research or education. G. L. c. 66, § 10(d )(ix). Based on the Town's January 2nd petition and the correspondence it provided, it is my understanding the requests made by Ms. Clairmont does not meet the statutory definition of "commercial purpose" within the Public Records Law. See G. L. c. 66, § lO(d)(ix). Further, I find the Town has not met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction, segregation or by assessing a fee in excess of $25 .00 per hour. See G. L. c. 66, § 10(d )(iv); SPRl 8/176 Determination of the Supervisor of Records (February 22, 2018). I decline to approve the District's request for $75.00 per hour. First, it is unclear for which record request the Town is seeking to charge $75.00 per hour. The Town also does not indicate how much time is needed for search and segregation, as well as why segregation is necessary. G. L. c. 66, § lO(d)(iv) (the supervisor must consider if the amount of the fee is reasonable and not designed to limit, deter or prevent access to requested public records). This office encourages the Town and Ms. Clairmont to communicate further to enable the Town to provide requested public records. G. L. c 66, § lO(a)(i) (the request must reasonably describe the public record sought). The Town must use its knowledge of the records to facilitate the provision of any additional responsive records. G. L. c. 66, § 1O (b )(vii) (a municipality 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 municipality to produce records sought more efficiently and affordably). Conclusion For the reasons discussed above, I find it is unnecessary to opine on the Town's extension request because it intends to provide responsive records within twenty five (25) business days of ----------~~~-th~reeeip-t--e-f-th~req_-ttes-ht~a-l-1:owed--in-G. L. c. 66---~l-efbJtvit,---Further;---hiec-H-ne-to--grant~the Town's petition to charge in excess of $25.00 an hour. See G. L. c. 66, § lO(d)(iv).

James M. Hagerty SPR19/0016 Page4 January 9, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Catherine Clairmont