Peter Culhane v. Milton, Town of - Town Clerk (SPR 20202323)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 4, 2020 SPR20/2323 Kevin S. Freytag, Esq. Murphy Hesse Toomey & Lehane, LLP 75-101 Federal Street Boston, MA 02110 Dear Attorney Freytag: I have received your petition on behalf of the Town of Milton (Town) seeking an extension of time to produce records and permission to assess fees 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, Peter Culhane requested: I. Based on my careful analysis of the email Wells sent to the DA on July 6, 2018, I consider it to be a counterfeit. I now request the (unredacted) original email he must have sent to the DA prior to July 6, 2018. The date of this email will probably fall between June 25, 2018 and July 5, 2018. It was very likely sent after 6:00 P.M. on June 26, 2018 (but it could have been sent on any date within this time period)… II. Copies of any emails or texts between any of the following persons: Michael Zullas, Richard Wells, Peter Dunn (the "complainant"), Michael Dennehy, Karis North, Andy Schmidt (the Select Board's ANAC Chair), Michael Morrissey, and Lynn Beland containing any of the following words: "Police," "police, "DA," district," "attorney," "District," "Attorney," "Michael," "Morrissey," "Lynn," "Beland " "Cindy " "Quincy " "Christiansen " "Christianson " or any word ' ' ' ' ' containing the following letters in successive order, "C-h-r-i-s-t." The emails and texts I am seeking in this paragraph fall within the following time periods: June 24, 2018 through July 15, 2018; August 14, 2018 through September 1, 2018; and September 10, 2018 through September 30, 2018. III. A copy of the report submitted to the Select Board by Attorney Ann (Nan) O'Neill in March 2019. This is the report that resulted from the investigation of Dr. Cindy Christiansen in the wake of the Select Board's vote during its November 8, 2018 Executive Session to ask Town Counsel John Flynn to conduct such an investigation. 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

Kevin S. Freytag, Esq. SPR20/2323 Page 2 December 4, 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; (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). 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 an extension of time to produce responsive records In its petition, the Town states that it has responded to sections 1 and 3 of the request, and requests “fifteen (15) additional business days to respond to Section II of Mr. Culhane'[s] request.” The Town explains that “[a]n initial search by the Milton IT department revealed over 2,000 emails that may have been responsive to the request. The search consisted of all emails to or from each individual named in the request, during the referenced time periods, and containing the referenced terms.” The Town further explains, “[t]hose emails were then reviewed, and it appears that approximately 435 emails may be responsive to the request. Of those emails, approximately 82 included Attorney Karis North who served as counsel for the Town during the times referenced in the request.” The Town estimates that the remaining approximately 343

Kevin S. Freytag, Esq. SPR20/2323 Page 3 December 4, 2020 emails totally 2,373 pages of emails, likely containing some duplicates. The Town additionally states that it has yet to receive search results from individual Town employees’ email accounts. The Town asserts that “[s]ome of the emails contain information regarding a specific individual that may be exempt from production pursuant to G. L. c. 4, § 7(26)(c). Specifically, the records contain accusations made against a former town appointee, who is named in the records, which, if produced, would be an invasion of that person's privacy resulting from the disclosure of certain allegations that were made against that person.” 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 15 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.

Kevin S. Freytag, Esq. SPR20/2323 Page 4 December 4, 2020 Request for permission to assess fees In its petition, the Town requests “that it be allowed to charge $25 per hour to segregate and redact information base[d] on Exemption (c).” As noted above, the Town indicates that the requested records are likely to contain information regarding a specified individual subject to redaction pursuant to Exemption (c), as well as information exempt from disclosure pursuant to the attorney-client privilege. The Town estimates that “it will take approximately eight (8) hours to segregate and possibly redact the 343 emails referenced above in accordance with Exemption (c)” Based on the Town’s petition, I find it has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv). In light of the factors in G. L. c. 66, § 10(d)(iv), 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 15 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. 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: Peter Culhane