Susan Dunning v. Concord, Town of - Town Clerk (SPR 20201920)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 22, 2020 SPR20/1920 Kate Hodges Deputy Town Manager Town of Concord 22 Monument Square Concord, MA 01742 Dear Ms. Hodges: I have received the petition of Susan Dunning appealing the response of the Town of Concord (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Dunning requested “any and all correspondence received by the Select Board relative to Stephen Crane from September 2019 through today, 9/11/20,” and “any and all complaints about Town Manager Crane made by a member of the public.” The Town responded to Ms. Dunning on September 23, 2020, providing a fee estimate for the production of responsive records. Unsatisfied with this fee estimate, Ms. Dunning petitioned this office and this appeal, SPR20/1920, 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, § 10(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, § 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 (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, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate 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

Kate Hodges SPR20/1920 Page 2 October 22, 2020 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, § 10(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, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s Fee Estimate In its September 23rd fee estimate, the Town estimates that it will require 70 hours to produce responsive records, for a total cost of approximately $1,700. Fees to search for, compile, segregate, redact or reproduce responsive records In its fee estimate, the Town explains that “[a]n initial search for emails to members of the Select Board during this timeframe which contain the search term ‘Crane’ revealed over 7,000 hits. These records must be reviewed for responsiveness and exemptions from disclosure prior to production. At an ambitious rate of 100 documents per hour, this will still require over 70 hours of review.” Subtracting the cost for the first two hours pursuant to G. L. c. 66, § 10(d)(iii), the Town therefore estimates a cost of approximately $1,700 for the production of responsive emails. The Town further explains that the emails will be reviewed for “attorney-client privileged information, personal employee information regarding Mr. Crane or others, and other material that may be exempt from review under the Public Records laws.” Based on the Town’s response, I find it must demonstrate that it may permissibly charge for time spent reviewing the records for redaction. See 950 CMR 32.07(2)(m)(4). Under the Public Records Law, a fee may 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, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). I am not aware that the Town has submitted a petition under G. L. c. 66, § 10(d)(iv). Petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). In its response, the Town indicates that the records will be reviewed for attorney-client privileged information. While the Town may permissibly charge for time spent redacting this information, it is unclear whether all of the records may potentially contain this information. The Town must clarify this matter.

Kate Hodges SPR20/1920 Page 3 October 22, 2020 Written Records In her appeal petition, Ms. Dunning states that her “request was not specific to emails alone and [the Town’s response] only addresses that,” and explains that she is also seeking written records. The Town must clarify whether it possesses any responsive written records. Modification of Request In its response, the Town states that “[i]f you have alternative proposals as to how to define the scope of your Request or efficiently identify the documents you seek, the Town is of course open to any suggestions.” This office encourages the parties to continue to communicate to facilitate the Town providing Ms. Dunning with the records she seeks. See G. L. c. 66, § 10(b)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Ms. Dunning with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Susan Dunning Samuel Dinning, Esq., Anderson & Kreiger LLP