Jasmine E. Parthasarathy v. Woburn Legal Counsel (SPR 20202257)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 23, 2020 SPR20/2257 Ellen Callahan Doucette City Solicitor City of Woburn City Hall 10 Common Street Woburn, MA 01801 Dear Attorney Doucette: I have received your petition on behalf of the City of Woburn (City) requesting relief from its obligation to produce responsive 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 City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On November 6, 2020, Jasmine E. Parthasarathy requested three categories of records, including emails from named individuals, as well as “[p]urchase orders and invoices for all purchases made by Woburn Public Library from Jan 1, 2019-present.” Ms. Parthasarathy further requested on November 13, 2020, “[a]ll communications, including attachments, from any member of the WPL Trustees… from Jan 1, 2020-present.” Subsequent to the opening of this petition, Ms. Parthasarathy provided a response to the City’s petition on November 19, 2020. 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; 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

Ellen Callahan Doucette, Esq. SPR20/2257 Page 2 November 23, 2020 (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). 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 In its November 18, 2020 petition, the City requests “…the Supervisor of Public Records relieve the City of the burden of replying to any additional public record requests submitted by Ms. Parthasarathy.” The City indicates “…Ms. Parthasarathy has filed multiple public record requests which at this point, are burdensome and simply intended to harass the Library Trustees and WPL employees. Aside from the requests for minutes of the Trustees' meetings, which have indeed indicated the need for training under the Open Meeting Law (and which as a result Ms. Parthasarathy filed Open Meeting Law complaints), a number of the requests including inter alia, the entirety of the WPL's Facebook account, Facebook comments and duplicative requests for the Trustees' emails, do not further the public interest which is the intent of the public records statute.” The City further indicates “…while reviewing the Assistant Director's emails in preparation for the filing of this Petition, I noted that Ms. Parthasarathy had emailed the Assistant Director a total of 75 times between July 16, 2020 and November 5, 2020 apparently in an attempt to get a response to a private Facebook post the Assistant Director made on her private Facebook page...[i]In her final email on November 5, 2020 Ms. Parthasarathy stated that ‘[s]ince you seem unable to respond to my questions I will redirect my energies elsewhere’. The public record request was filed the next day.” In her November 9th response, Ms. Parthasarathy states “I have made a number of separate requests for Trustee emails…but these are distinct requests, with no overlap or duplication between them. Emails to and from the Trustees may naturally be included in other requests…but my intention was not to specifically duplicate a request or to place a burden on the Records Access Officer.” Based on the information provided in the November 18th petition, I find that the City has not met its burden to demonstrate the requests; which relate to City official communications, as well as City purchase order and invoices; are frivolous and not intended for the broad

Ellen Callahan Doucette, Esq. SPR20/2257 Page 3 November 23, 2020 dissemination of information to the public about actual or alleged government activity, as required by 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, § 10(d)(iv). 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, § 10(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, § 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,

Ellen Callahan Doucette, Esq. SPR20/2257 Page 4 November 23, 2020 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, § 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 of Records 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). 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 City requests it “be permitted to charge in excess of $25.00 for the time it will take to review, segregate, redact and reproduce the emails requested.” The City states “[t]he hourly rate of this RAO is $69.33 and that of my secretary is $42.00 (based upon the City's 32.5-hour work week).” The City indicates it “….has endeavored to provide responses to Ms. Parthasarathy's requests as required by M.G.L. c.66, §10 and, with the exception of the cost for a flash drive and a recent cost assessment for paper copies, has done so without assessing fees therefor. However, the preparation of responses to two of Ms. Parthasarathy' s more recent requests have resulted and will result, in a significant investment of time…” The City further indicates “[u]ntil fairly recently, the Library Director (and staff) had email accounts with the Minuteman Library Network ("MLN") and on or about July, 2020, were changed to the City's email system. MLN's email system is not under the control of the City and obtaining emails has required the City's IT department to request access from MLN. There were also issues pertaining to MLN's failure to adhere to the Municipal Record Retention Schedule.” The City explains “[r]eviewing, segregating and ultimately redacting emails is time consuming. Yesterday, I spent 2 hours reviewing and segregating over 2,000 emails from the Director's City account which included personnel, collective bargaining and library patron issues.” The City further explains “Ms. Parthasarathy submitted another request on November 6, 2020 this time, for the emails from the Assistant Director's email accounts…. [a] number of the emails from the accounts must be withheld as exempt pursuant to M.G.L. c.7 (26) (c) personnel and collective bargaining matters, 950 CMR 32.07 (2)(d); and others must be redacted before being reproduced pursuant to M.G.L. c.78, §7 which prohibits the production of documents containing information related to library patrons.” The City indicates “[i]n reviewing the Assistant Director's email account with the City of Woburn, there are in fact 8,304 emails.” Given the nature of the requested records, I find the City 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). However, the City has not met its burden to charge a rate in excess of $25.00 per hour.

Ellen Callahan Doucette, Esq. SPR20/2257 Page 5 November 23, 2020 Conclusion Accordingly, I find the City has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the City may assess a fee for segregation and redaction. However, this fee is limited to a rate of $25.00 per hour. The parties are encouraged to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(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 agency to produce records sought more efficiently and affordably). Any fee estimate from the City must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Ms. Parthasarathy 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), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jasmine E. Parthasarathy