Pankaj Merchia v. Brookline, Town of - Town Clerk (SPR 20211280)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 27, 2021 SPR21/1280 Chris Tisbert Town of Brookline 333 Washington Street Brookline, MA 02445 Dear Chris Tisbert: I have received your petition on behalf of the Town of Brookline (Town) seeking to charge $60.34 per hour in responding to a request made by Dr. Pankaj Merchia. 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. In a letter dated May 10, 2021, Dr. Merchia requested: 1. All letters ordering “stop work” issued by the Town of Brookline from January 1, 2019 through December 31, 2020. 2. All records that the town of Brookline has in relation to building activities or permits at 617 Boylston St, Brookline, MA 02445 since December 1, 2017 until present. Records includes emails, hand written notes, letters, permits. Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency 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 agency to comply with the request. 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. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that the request is not for a commercial purpose. The second 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 SPR21/1280 Page 2 May 27, 2021 prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions to Assess Fees - Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). 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. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). 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 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In its petition dated May 21, 2021, the Town requested “…a waiver of the requisite statutory limits so as to allow it to: (a) charge for time spent segregating and redacting records, as necessary; and (b) permission to charge fees in excess of $25/hour.” The Town states it “…has identified records responsive to Dr. Merchia’s requests. However, the bulk of records potentially responsive to the second request are exempt from the Public Records Law because they are subject to the attorney-client privilege or other applicable exemption.” The Town further notes, “…Dr. Merchia has made allegations of unfair and illegal conduct by Town staff and has repeatedly threatened litigation, therefore to the extent here has been internal discussion of building activities and permits at 617 Boylston Street they have often involved consultations with Attorney Simpson on the potential legal ramifications of decisions being made.” Although the Town states “the bulk of records potentially responsive to the second

Chris Tisbert SPR21/1280 Page 3 May 27, 2021 request are exempt from the Public Records Law,” it has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information. Conclusion I find the Town has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Town from charging for segregation and redaction that is required by law at a rate of no more than $60.34 per hour. This office encourages Dr. Merchia and the Town 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 updated fee estimate by the Town must be in compliance with this determination, the Public Records Law, and its Access Regulations. The Town shall provide a response to Dr. Merchia within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Dr. Merchia may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ./JA~.~-- ~ ·-- - ~ I . - . - - - Rebecca S. Murray Supervisor of Records cc: Dr. Pankaj Merchia