Public Records v. Sherborn, Town of - Town Administrator (SPR 20202234)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 24, 2020 SPR20/2234 Christopher L. Brown, Esq. Petrini & Associates, P.C. City of Framingham – City Solicitor 372 Union Avenue Framingham, MA 01702 Dear Attorney Brown: I have received your petition on behalf of the Town of Sherborn (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). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On October 30, 2020, the requestor requested 9 categories of records concerning the Town’s Police Department and Department of Public Works. 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, § 10(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 L. Brown, Esq. SPR20/2234 Page 2 November 24, 2020 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). The Town “requests that the Supervisor allow the Town the maximum 30 business day extension pursuant to G.L. c. 66, s. 10(c).” The Town adds,“[t]o search the Town’s electronic records and compile a set for review by the Town’s records custodians, the Town’s Information Technology consultant will need to run various queries of the Town’s email and electronic document storage systems using the keywords included in the requests. The Town does not have an employee capable of performing this function in house and must use the consultant for these purposes, otherwise it would take the Town substantially more time to respond to these broad requests, several of which seek records which are unlimited in time. Additionally, as Sherborn is a small town with a much smaller municipal workforce than other larger communities, the relevant departments do not have available employees other than the department head custodians of the emails and documents themselves to conduct the search.” I find the Town has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Town an extension of 30 business days to furnish copies of records responsive to the request. See G. L. c. 66, § 10(c). To the extent possible, the Town must provide responsive records on a rolling basis. Petitions for ability to assess fees 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, § 10(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. 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). The 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

Christopher L. Brown, Esq. SPR20/2234 Page 3 November 24, 2020 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, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10(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. Id. The Town states, “[g]iven the anticipated exempt information that will be in some of the records responsive to the requests, the Town requests that it be allowed to charge for the time that will be spent segregating and redacting the records prior to making them available to the requester pursuant 950 CMR 32.06(4)(h). Further, given that only counsel reasonably can make a determination regarding the existence of the attorney-client privilege, at great cost to the Town in terms of staff time and resources and legal costs, the Town further petitions to allow the Town to charge the requester fees in excess of the $25 per hour statutory maximum rate to respond to their requests pursuant to G.L. c. 66, s. 10(d)(iv).” The Town seeks permission to charge for the IT consultant’s hourly rate of $125.00 “for the query and retrieval process to search and assemble the records for the Town’s review” and counsel’s hourly rate of $195 for “review and redaction of potentially exempt records.” In addition, the Town seeks permission to charge “for the time to be spent by individual departments/department heads in searching for and responding to the request.” Specifically, the police department’s hourly rate of $73.64 and the public works director’s hourly rate of $52.00 It is my determination that given the nature of the requested records and the explanation in its petition, the Town is permitted to charge for time spent segregating and redacting 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, § 10(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 $75.00 per hour for production of records. G. L. c. 66, § 10(d)(iii). 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

Christopher L. Brown, Esq. SPR20/2234 Page 4 November 24, 2020 records contain the exempt information as described above, the Town may assess a fee for segregation and redaction. Please note the requestor 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, § 10A. Sincerely, Rebecca S. Murray Supervisor of Records cc: Publicrecordssherbornma David Williams Jackie Morris