Tara Dunn v. Natick, Town of (SPR 20211005)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 27, 2021 SPR21/1005 Karis L. North, Esq. Town of Natick Murphy, Hesse, Toomey & Lehane, LLP 300 Crown Colony Drive Quincy, MA 02169 Dear Attorney North: I have received your petition on behalf of the Town of Natick (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 April 5, 2021, Attorney Tara Dunn requested 16 categories of records “in the possession, custody or control of the Town of Natick, including but not limited to the Natick Town Manager, the Natick Board of Selectmen, and/or Natick Town Counsel for the time period commencing on January 1, 2013 through December 30, 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 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

Karis L. North, Esq. SPR21/1005 Page 2 April 27, 2021 (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). In its April 20, 2021, petition, the Town requests “an additional 30 business days beyond the time specified under the statute (25 business days) – for a total of 55 business days from the date of receipt of payment for the work, to respond to these requests.” The Town states “Natick respectfully requests relief from the sheer volume and complexity of this response, which spans seven years, and touches on many departments and boards within Natick.” The Town indicates “Natick has surveyed all of the potentially responsive records to this request and, and has estimated between 8,400 and 16,000 emails with attachments which may be responsive to this request. It is unknown at this time the number of pages of records which make up this request, but estimating, on average, 5 pages of documents per email and attachment, and using the lower number of documents (8,400), results in an estimated total of 42,000 pages of documents to retrieve, review, segregate, potentially redact, and produce.” The Town further indicates “…these records…may contain personal and/or confidential information regarding employees/personnel, members of the public, or be subject to attorney client privilege and/or attorney work product privilege, or subject to other exemptions under the Public Records Law.” The Town explains “[r]esponding to these requests is burdensome to Natick, and impacts the ability of Natick staff to complete its mission and other work. In addition, Natick is in the midst of its 2021 Spring Annual Town Meeting, which requires the attention of Department heads, staff, and counsel, and is likely to run into mid-May.” The Town indicates “[t]hese public records requests are voluminous, have already consumed hours of staff, Department Head, and counsel time which Natick will never be able to recoup. Every request such as this one takes Natick away from its obligations to its residents and the public at large.” I find that in light of the need to search and segregate the records, the efforts undertaken by the Town in fulfilling the current request, 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 beyond the time allowed in G. L. c. 66, § 10(b)(vi) (a municipality may provide a timeframe not

Karis L. North, Esq. SPR21/1005 Page 3 April 27, 2021 to exceed 25 business days to produce responsive records). 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. In its petition, the Town requests “…a waiver of the statutory limit on fees for responding to public records requests. I request authorization to charge an increase in the allowable hourly rate for responding to this request to $50/hour.” The Town indicates “[t]his $50/hour rate is a blended rate, including town personnel (utilizing the $25/hour rate even for higher level staff such as the Director of Community Development, the Records Access Officer, the Deputy Town Administrator for Operations), and Town Counsel, at a rate of $175/hour.” The Town notes “Natick’s response to Attorney Dunn also includes suggesting that she narrow the request, to perhaps a single department, or eliminating certain individuals, or narrowing the time frame of the request.” The Town further indicates “[b]ased upon previous record requests and provision of records, the Town of Natick averages more than 10 hours per 1000 pages to search and segregate these records which may contain personal and/or confidential information regarding employees/personnel, members of the public, or be subject to attorney client privilege and/or

Karis L. North, Esq. SPR21/1005 Page 4 April 27, 2021 attorney work product privilege, or subject to other exemptions under the Public Records Law. Redaction typically averages another 2 hours per 1000 pages.” The Town provides the following estimate: “Estimated Personnel Cost (based on 8,400 records/42,000 pages): Segregation time: 420 hours Redaction Time: 84 hours Total Time: 504 hours Total time charged: 500 Hours (Over ten (10) hours has already been dedicated to this request by staff and counsel) Cost per hour as approved by the Supervisor of Records: $25.00 Total Cost: $12,600.” The Town explains “Town Counsel’s involvement would be as limited as possible, but it is necessary where the records sought specifically include counsel’s own records and/or communications with its client (or, where not sought, must be redacted), and where the requester is in an adversarial position towards the Town. Natick has RAOs assigned by Department, and where the records are likely to involve a variety of documents which are otherwise exempt from the Public Records Law and where such segregation is required by law, including highly sensitive documents containing information about or referencing personnel, and attorney-client communications and/or attorney work-product. Given the scope and breadth of the request and the required response, some oversight of and consistency in the response is necessary, in addition to ensuring compliance with the law.” Given these records may contain confidential information of attorney-client privilege, I find the Town has met its burden to charge for segregation and redaction. Further, I find the Town has 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 $50.00 per hour for attorney review. Conclusion Accordingly, I find the Town has established good cause for a time extension of 30 business days as described above. Further, in light of the Town’s petition, I find the Town has met its burden to explain how the response could not be prudently completed without redaction, segregation, or by assessing a fee in excess of $25.00. To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction at $50.00 per hour. This office encourages Attorney Dunn and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a

Karis L. North, Esq. SPR21/1005 Page 5 April 27, 2021 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.) 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: Tara Dunn, Esq. Kathy Lentini