Amy Troup v. Halifax, Town of (SPR 20200658)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 21, 2020 SPR20/0658 Charlie Seelig Town Administrator Town of Halifax 499 Plymouth Street Halifax, MA 02338 Dear Mr. Seelig: I have received your petition on behalf of the Town of Halifax (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, § 10(c ); G. L. c. 66, § 10(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). On April 13, 2020, Amy Troup requested "anything to do with 167-22 by law in accordance with the appeal so to include the Amanda Estates for over the last 8 months." 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. 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

Charlie Seelig SPR20/0658 Page2 April 21, 2020 G. L. c. 66, § lO(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). Please note, a business day does not include a weekday where a custodian's office is unexpectedly closed. 950 C.M.R. 32.02. In its petition, the Town requests "[a]n extension of time, of at least 45 days, to gather, review, and provide these documents to Ms. Troup if she does confirm that she wants eight months worth of documents associated with this matter w[i]th said 45 days to begin once she confirms her request." The Town states "[g]iven the current pandemic and the need by many of the Town's officials to spend time, either officially or in the other parts of their lives, to deal with the many challenges caused by the pandemic, the normal amount of time allowed would be inadequate." The Town explains "[n]ot only would eight months of documents need to be retrieved (and because of the amount of work done in this matter by the Planning Board, Zoning Board of Appeals, Building Inspector, Board of Selectmen, the Town's attorneys, and myself during this period, the volume of documents is fairly large), I would need to request and review the documents held by the individual members of the Boards for which I may not have been included in as a sender or recipient." I find that in light of the need to collect and segregate the request, the potential scope of redaction required to prevent unlawful disclosure, as well as the capacity of the Town to fulfill the request, the Town has established good cause to permit an extension of time. G. L. c. 66, § 10(c )(i)-(ii). I hereby grant the Town an extension of 30 business days beyond the time allowed in G. L. c. 66, § 1O (b )(vi) ( a municipality may provide a timeframe not to exceed 25 business days to produce responsive records). Please note the time may begin to run once the Town receives payment. G. L. c. 66, § 10( c ). Petition to Assess Fees 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, § 10 ( d)(iv). See G. L. c. 66, § 10( d)(iii); 950 C.M.R. 32.06(4). 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, § lO(d)(iv).

Charlie Seelig SPR20/0658 Page 3 April 21, 2020 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. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § IO(d)(iv). It is my determination that this request was not made for a commercial purpose. 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; 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates 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. 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 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, § IO(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, § IO(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, § IO(d)(iv). See G. L. c. 66, § IO(d)(iii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4 )(g). In its petition, the Town requests "[t]hat time spent redacting documents be included in the cost given the number of documents that will be associated with the Town's attorneys and could fall under attorney-client privilege" and "[t]hat any time spent by me on this project be charged on my hourly wage rate of$53.22, not the normal limit of $25 per hour." The Town explains "[s]ome of the records requested by Ms. Troup may fall under the

Charlie Seelig SPR20/0658 Page4 April 21, 2020 attorney-client exemption as while some communications with counsel were made public and will be released, some were not. This search and review would need to be done by myself not staff members." Given these records may contain confidential information attorney-client privilege information, I find the Town has met its burden to explain how the request could not prudently be completed without redaction or segregation or by assessing a fee in excess of $25.00 per hour. 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. Further, I find the Town has 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, § lO(d)(iv). In light of the factors in G. L. c. 66, § 10( d)(iv), I find the Town may assess a fee limited to $53 .22, the hourly rate of Mr. Seelig, the Town Administrator. Conclusion Accordingly, I find the Town has established good cause for a time extension of 30 business days as described above. Further, in light of the Town's petition, I find the Town has met its burden to explain how the response could not be prudently completed without redaction or segregation, or by assessing a fee in excess of $25.00 per hour. To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction. When preparing a fee estimate for the provision of the requested records, the Town is advised to provide a detailed explanation to the requestor indicating why this estimated amount of time is necessary. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). Please note, the Supervisor does not possess the authority to permit the Town to charge for the first two hours of employee time. The Town must provide a response to Ms. Troup as soon as practicable after receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Troup may appeal the Town's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Ms. Troup 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, § 10(d)(iv)(4), lOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Amy Troup