Richard Thompson III v. Sherborn, Town of - Town Administrator (SPR 20202247)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 24, 2020 SPR20/2247 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 (City) seeking relief from its obligation to produce responsive records, 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, § 10(c). On November 2, 2020, Richard Thompson III requested 20 categories of records concerning the Town and its respective departments. 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

Christopher L. Brown, Esq. SPR20/2247 Page 2 November 24, 2020 G. L. c. 66, § 10(c). 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). Request for relief from obligation to produce responsive records The Town in its petition for relief states Mr. Thompson “has indicated in a recent email to the Town Administrator that he intends to file a lawsuit against the Town. As such, given the broad scope of the requests and the individuals being targeted through the requests, it is reasonably clear that the above requests are intended to harass the Town and specifically officials with whom Mr. Thompson is upset with.” The Town “urges the Supervisor to find based on this information, and any further information that the Supervisor uncovers in its own investigation of this petition, that Mr. Thompson’s request of November 2, 2020 discussed above is part of a series of 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....’ G.L. c. 66, s. 10(c)(vi). The Town requests that based on such determination, that the Supervisor either relieve the Town from having to respond to the request altogether, or at the very least further extend the time for the Town’s response to this request.” In support of its request for relief, the Town notes, “along with this request, [Mr. Thompson] has submitted at least 5 other requests to the Town in the past few weeks, and is possibly making additional requests through an anonymous account that began submitting requests to the Town within the past 2 months with similar requests targeting the same Town officials.” Based on the information provided in the Town’s petition, I find that the Town has not met its burden to demonstrate the requests, which relate to Town officials, are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c). Extension of time to produce responsive records The Town asserts that a significant amount of time is needed to review the records for exempt material. As a result, the Town “requests that the Supervisor allow the Town the

Christopher L. Brown, Esq. SPR20/2247 Page 3 November 24, 2020 maximum 30 business day extension pursuant to G.L. c. 66, s. 10(c).” The Town explains, “[w]hile an exhaustive list of the potential exempt categories is not possible until the records are actually reviewed, we anticipate that some of the records may contain personnel information protected from disclosure under exemption (c), inter- and intra- agency emails related to policy positions being developed by the Town protected from disclosure under exemption (d), personal information related to public employees protected under exemption (o), and privileged attorney-client communications protected from disclosure under the common law attorney-client privilege recognized in Suffolk Construction v. DCAM, 449 Mass. 444 (2007). The police logs requested alone are hundreds of pages in length and will require substantial redaction of witness identifying information and other personal information.” The Town states, “[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 keywords based on 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 may span years.” I find that in light of the capacity of the Town to produce the request without the extension, and the efforts undertaken by the Town in fulfilling the request, 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 Mr. Thompson’s request. See G. L. c. 66, § 10(c). 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 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

Christopher L. Brown, Esq. SPR20/2247 Page 4 November 24, 2020 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 seeks permission to charge Mr. Thompson fees in excess of $25 per hour. Specifically, the Town seeks to charge for the IT consultant’s hourly rate of $125.00 “to conduct queries to assemble review sets of the responsive records” 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 Town requests to charge the police department’s hourly rate of $73.64, the fire department’s hourly rate of $29.13 and the town administrator’s hourly rate of $75.00. 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 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.

Christopher L. Brown, Esq. SPR20/2247 Page 5 November 24, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Richard Thompson III David Williams Jackie Morris