Savyon Cohen v. Brookline, Town of - Town Clerk (SPR 20202423)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 14, 2020 SPR20/2423 Chris Tisbert Administrative Assistant/Records Access Officer Town of Brookline 333 Washington Street, 1st FL - Rm 104 Brookline, MA 02445-6853 Dear Mr. Tisbert: I have received your petition on behalf of the Town of Brookline (Town) seeking a waiver of statutory limits on fees that may be assessed in responding to the requests. 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 22, 2020, Savyon Cohen requested “all email[s] sent and received that names or references [named individuals] over the last two years.” 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 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

Chris Tisbert SPR20/2423 Page 2 December 14, 2020 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. - In its petition, the Town requests “…approval to charge the requesting party for the Foley Hoag fees, as described above, pursuant to G.L. c. 66, §10(d)(iv) and 950 CMR 32.06(4)(g).” The Town indicates “Town Meeting Moderator Edward (Sandy) Gadsby received by email a public records request from Ms. Savyon Cohen…[t]he Moderator receives voluminous (roughly on the order of 50-100/day) Town Meeting-related emails each day through the Town Meeting Members Association list-serve and otherwise. He anticipates there may be/are likely to be approximately 20,000 responsive emails generated from this list.” The Town further indicates “[t]he Moderator is affiliated with the private law firm Foley Hoag LLP and uses his professional email address with that firm in connection with his Town Moderator role. The law firm provides the following estimates of the time to be required at the rate of the firm’s lowest paid employees who have the necessary skills required to search for, compile, and reproduce the records requested. The hourly rates are based on the individuals’ salaries and are not the firm’s billable hourly rates (which are higher). * IT Messaging Engineer at $66/hour. Estimated time required: 25 hours. Total estimate: $1,650. Responsibility: Oversee the technical aspects of generating and running searches, compiling results and producing them as required. • Director of Records at $83/hour. Estimated time required: 5 hours. Total estimate: $415. Responsibility: Final review prior to production by law firm. • Junior paralegal at $62/hour. Estimated time required: 35 hours. Total estimate (no charge for first two hours): $2,170. Responsibility: Review and collate hits generated by the searches. Total estimate: $4,235. The actual cost of producing the records may vary once the producing parties begin preparing the records.” The Town explains “further review will be required to determine whether an exemption may apply to the emails.” The Town indicates “[i]n the event the Secretary approves this request, the Town will waive charges for the additional time that will be required to produce the records, including time entailed to segregate and/or redact the emails based on the Town’s own review.” Although the Town states that the responsive records require review for applicable exemption, it has not provided information regarding what exemptions may apply and why such

Chris Tisbert SPR20/2423 Page 3 December 14, 2020 records are likely to contain exempt information. Accordingly, the Town has not 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). This office encourages Ms. Cohen 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). Conclusion When preparing a fee estimate for the provision of the requested records, the Town must reduce the amount of time charged for producing the records, or provide more detail explaining why this amount of time is necessary. 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: Savyon Cohen