Steven Ballard v. Boxborough, Town of - Town Clerk (SPR 20200288)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 27, 2020 SPR20/0288 Ryan Ferrara Town Administrator Town of Boxborough 29 Middle Road Boxborough, MA O1 719 Dear Mr. Ferrara: I have received the petition of Attorney Steven Ballard appealing the response of the Town of Boxborough (Town) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Ballard requested copies of all drafts of the "Draft Policy on Membership and Activities on Town Boards," and all communications regarding this policy "between and among, or including but not limited to, as recipient or sender, any member of the Policy Advisory Committee, the Boxborough Select Board, or any paid staff of the Town of Boxborough." Previous appeals This request was the subject of previous appeals. See SPR19/2367 Supervisor of Records Determination (December 9, 2019); SPR20/0065 Supervisor of Records Determination (January 28, 2020). In my January 28th detennination I ordered the Town to provide Attorney Ballard a response in a manner consistent with the order, the Public Records Law, and its Regulations. The Town responded on February 12, 2020. Attorney Ballard appealed and SPR20/0288 was opened as a result. Fee Estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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, § IO(d). The fees must 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

Ryan Ferrara SPR20/0288 Page 2 February 27, 2020 reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double.-sided photocopy of a public record. G. L. c. 66, § 10(d )(i). Municipalities may not assess a fee for the first 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 fewer. G. L. c. 66, § 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, 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 under a petition under G. L. c. 66, § lO(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 under a petition under G. L. c. 66, § lO(d)(iv). G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Current appeal In a November 21, 2019 response, the Town estimated that it will require 6 hours of work to find and produce the requested records. The Town estimated that it would require 1 hour to search for responsive emails, 4 hours for the Department Assistant to "review and prepare responsive records" and 1 hour for the Town Clerk to "review and prepare responsive records." The Town estimated a total fee of $150 to respond to the request. In its December 17, 2019 response the Town provided copies of drafts of the "Policy on Membership and Activities of Appointed Boards." The Town also indicates that it" ... provided the good faith estimate within ten business days after receipt of the request in accordance with G.L. c. 66, §lO(b). Specifically, the Town received the request on November 6, 2019 and provided the good faith estimate on November 21, 2019, within the statutory response period given the Veterans Day legal holiday in which Town offices were closed." With respect to the Town's explanation of its fee estimate, you asserted" ... the Town has already incurred significant cost to respond to the request, which costs were not even included as part of the Town's good faith estimate. Specifically, the Town has already paid for two hours of work at $250 per hour, totaling $500 from* former IT vendor to conduct a comprehensive search its e-mail archive based on the nature of the request. The hourly rate provided in the Town's estimate was for our current vendor which we anticipate will be billing us for their initial email search as well." You explained that"[d ]espite such charges, the Town is only charging Mr. Ballard for one hour of the IT time to conduct the necessary searches at $25/hour in accordance with the law." The Town explained the "Estimated number of identified emails" is 466 and estimates 30 seconds per email to "locate responsive records." The Town estimated it will require 3.9 hours

Ryan Ferrara SPR20/0288 Page 3 February 27, 2020 "of work for Department Assistant review to locate responsive records." You further noted that "[b ]ased on the number of potentially responsive e-mails, for which the Town Clerk will also be locating e-mails responsive to the request in coordination with the Department Assistant, we anticipate conservatively that this effort will take one hour of the Town Clerk's time." The Town contends "[i]n sum, the $150 estimate is extremely conservative, done in good faith and only covers a portion of what the Town anticipates its actual costs will be to provide the requested e mails and the remaining Town documents are provided herein at no charge." In the Town's February 12th response Attorney Janelle Austin of KP Law, P.C. provides additional information regarding its fee estimate to produce emails. In particular, she notes" ... the Town, again, notes that it is not charging for any segregation or redaction time, but based on the nature of the request, its IT vendor initially identified 466 e-mails, which contain hundreds and hundreds of pages as some emails are multiple pages long, based on keyword. The Department Assistant, as identified in the response, is then required to search the electronically pulled emails generated by the Town's IT vendor to locate communications related to the Draft Policy on Membership and Activities on Town Boards. This search time is estimated at the conservative rate of 30 seconds per e-mail (as most e-mails have numerous pages) to actually locate communications being sought." Attorney Austin explains "[a]s the Division is aware, the Town has also previously provided Mr. Ballard with the opportunity to work collaboratively on this request, in an effort to more expeditiously respond. In that spirit, at this juncture, the Town is further agreeing at this time to waive the fee associated with Town Clerk's time of $25 to review and prepare responsive records since that work has already been completed and with the attached record, all hard copy documents related to this request have been provided to the requestor." With respect to communicating further to produce responsive records, Attorney Austin notes, in part," ...t he Town would be willing to discuss this request further with the requestor as well as a member of your office, if for example, he could provide the records custodians, a shorter time period or specific topics, which may facilitate a quicker response to locate the broad range of communications being sought, which is for all communications regarding the Draft Policy on Membership and Activities on Town Boards ...." In his appeal petition, Attorney Ballard raises various issues with the Town's response and asks this office to, in part, order the Town to provide him the responsive emails. However, based on the appeal petition, I find the basis of the appeal is unclear. Specifically, the Town's February 12th response provides additional information regarding how it arrived at its fee estimate; however, based on his petition, it is unclear why Attorney Ballard objects to this additional reasoning. Whereas the issues surrounding the Town's fee estimate must be addressed prior to ordering disclosure of emails, this office is unable to opine on the appeal at this time. See 950 C.M.R. 32.08(1)(±) (all petitions for appeal shall be in writing and shall specifically describe the nature of the requestor's objections to the response or failure to issue a timely response). Attorney Ballard may wish to clarify the nature of the objections.

Ryan Ferrara SPR20/0288 Page 4 February 27, 2020 Attorney Ballard and the Town are encouraged to communicate in order to facilitate producing records efficiently and affordably. Attorney Ballard may wish to narrow his request to include shorter time periods or specific topics. G. L. c. 66, § lO(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § lO(a)(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). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Steven Ballard, Esq.