Richard Thompson III v. Sherborn, Town of - Town Administrator (SPR 20202269)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 30, 2020 SPR20/2269 Christopher L. Brown, Esq. Petrini & Associates, P.C. City of Framingham 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); 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 4, 2020, Richard Thompson requested 21 categories of records from the Town of Sherborn Police Department, including emails and text messages sent and received by Lt. David Bento, records relating to overtime payments, invoices, training certificates, and complaints. 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. SPR20/2269 Page 2 November 30, 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 In its November 19, 2020, petition, the Town requests 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 (beyond the additional 30 business days requested below).” The Town asserts that “Mr. Thompson is a disgruntled former Town employee who was recently terminated from his position,” and explains that “[a]long with this request, he 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 November 19th petition, I find that the Town has not met its burden to demonstrate the requests, which relate to Town officials and their public duties, 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). Request for an extension of time to produce responsive records The Town additionally requests “that the Supervisor allow the Town the maximum 30 business day extension pursuant to G.L. c. 66, s. 10(c), in addition to the 25 business days the Town has communicated to Mr. Thompson in its initial response to his request, to produce the records responsive to the November 4, 2020 requests following his payment of the Town's fee estimate.” The Town explains that the requested records are likely to contain information that may be redacted pursuant to Exemptions (c), (f), (d), and (o) of the Public Records Law, as well as attorney-client communications. The Town further explains “[t]o search the 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

Christopher L. Brown, Esq. SPR20/2269 Page 3 November 30, 2020 systems using the keywords included in the requests...[a]dditionally, 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.” The Town additionally notes that it has received “several other public records requests” from Mr. Thompson “in the past month.” I find that in light of the need to search and segregate the records, the potential scope of redactions, as well as capacity of the Town to produce the request without the extension, 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. Please note the time may begin to run once the Town receives payment. 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 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. Request for permission to assess fees In its petition, 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

Christopher L. Brown, Esq. SPR20/2269 Page 4 November 30, 2020 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 states “some of the records requested are likely to contain information that is exempt from disclosure under one or more exemptions in the Public Records Law, G.L. c. 4, s. 7(26), and will either be withheld or will need to be redacted before they can be produced….” The Town explains that “[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), witness identifying information protected from disclosure under exemption (f), 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….” The Town indicates “[f]or the Town's IT consultant's time to conduct queries to assemble review sets of the responsive records for review and redaction, we estimate the search time for the consultant will take approximately 8 hours total for all of the requests on which they will provide assistance. The Town petitions to charge the consultant's hourly rate of $125.00 for the query and retrieval process to search and assemble the records for the Town's review.” The Town explains it “…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 spanning the past decade.” The Town indicates “[f]or the time to be spent by individual department heads in searching for and responding to the request, the Town petitions to charge their actual hourly rates as follows: Police Department - $73.64/hour (estimate 275 hours of time) Finance Director - $33.81/hour (estimate 2 hours of time).” The Town explains “… 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.” Lastly, the Town indicates “[f]or counsel's review and redaction of potentially exempt records (to be initially flagged by Town officials in their review), the Town requests that the Supervisor allow the Town to charge the rate it will be charged by counsel for such review, $195 per hour. The Town estimates approximately 12 hours of time for counsel's review.” I find the Town may charge for segregation and redaction. Further, I find the Town has

Christopher L. Brown, Esq. SPR20/2269 Page 5 November 30, 2020 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 the Town’s IT consultant; a fee limited to $75.00 per hour for attorney review; as well as the provided hourly rate of $73.64 per hour for the Police Department and $33.81 per hour for the Finance Director. To the extent the responsive records contain the exempt information described above, the Town may assess a fee for segregation and redaction. Conclusion As set forth above, I find the Town has established good cause for an extension of 30 business days to produce records. Further, 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. This office encourages the requestor and the Town 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 municipality to produce records sought more efficiently and affordably). Any fee estimate provided by the Town must be in compliance with this determination, the Public Records Law, and its Access Regulations. The requestor may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). 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: Richard Thompson III