Peter Culhane v. Milton, Town of - Town Clerk (SPR 20210189)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 4, 2021 SPR21/0189 Kevin S. Freytag, Esq. Murphy, Hesse, Toomey & Lehane, LLP 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Freytag: I have received your petition on behalf of the Town of Milton (Town) seeking an extension of time to produce records. G. L. c. 66, § 10(c). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor. Id. On December 29, 2020, Mr. Culhane requested five (5) categories of records “in reference to Mr. Freytag's email to me on December 23, 2020.” Petition 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 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. SPR21/0189 Page 2 February 4, 2021 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). Current Petition In its January 27th petition, the Town states “[b]ased on the number of requests involved, the possible exemptions set forth above, and the need for the records to be reviewed by the Office of Town Counsel, the Town requests pursuant to G. L. c. 66, § 10(b)(vi), thirty (30) additional business days to respond to Mr. Culhane' request.” The Town indicates it “responded to Mr. Culhane's request on January 13, 2021 and indicated in that response that it was availing itself of fifteen (15) additional business days to reply to his request pursuant to G.L. c. 66, § l0(b)(vi). The Town also sought clarification as to Section III of Mr. Culhane’s request…Mr. Culhane provided clarification of his request later that same day.” The Town explains “[s]ome of the records responsive to Mr. Culhane’s request may 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. In addition, some of the records requested are likely to be protected by the attorney-client privilege. Therefore, the records will need to be reviewed by the Office of Town Counsel to determine whether any statutory exemptions or the attorney-client privilege should be applied.” The Town further explains it “makes this request so that the Office of Town Counsel will be able to continue to fulfill its obligations to provide day-to-day legal services to the Town and, at the same time, respond to Mr. Culhane’s request, along with other public record requests that have been made by Mr. Culhane.” I find that in light of the capacity of the Town to produce the request without the extension, the potential scope of redactions, as well as efforts undertaken by the Town in fulfilling the current request and previous requests, 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. Culhane’s request. See G. L. c. 66, § 10(c). To the extent possible, the Town must provide responsive records on a rolling basis.

Kevin S. Freytag, Esq. SPR21/0189 Page 3 February 4, 2021 Conclusion Accordingly, I find the Town has established good cause for a time extension of 30 business days as described above. Please note, Mr. Culhane 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: Peter Culhane Susan M. Galvin Michael D. Dennehy