Beth R. Myers v. Dracut, Town of - Town Manager (SPR 20211481)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 24, 2021 SPR21/1481 Ann Vandal Town Manager Town of Dracut 62 Arlington Street Dracut, MA 01826 Dear Ms. Vandal: I have received the petition of Beth Myers, Esq. of Burns & Levinson, LLP appealing the response of the Town of Dracut (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 5, 2021, Attorney Myers requested the following records: 1. Any and all email correspondence between and among [18] email accounts for for the period January 1, 2020 to the present[.] 2. Time, attendance and payroll records indicating payroll codes for accrued time, paid and/or unpaid leave and any other leave usage for [4 identified] Town employees[.] 3. Payroll summary reports for any Town employee not named in Request No. 2, above, who took extended time off (more than two weeks) using accrued time, unpaid leave, or 111F leave for the period January 1, 2020 to the present[]. 4. Any and all written minutes and audio/video recordings of Executive Sessions of the Town’s Board of Selectmen that mention or reference . . . from April 1, 2017 through present. 5. Any and all indemnification insurance policies that provide coverage to [an identified individual], including but not limited to the policy referenced in Section 7 of his contract with the Town. 6. Documents concerning the 2015 Risk Assessment Study Report for the Dracut Fire Department created by Municipal Resources, Inc., (the “Report”), including the following: • An unredacted copy of the full Report; • Any and all notes of meetings concerning implementation of the Report’s recommendations; • Any and all working documents and correspondence between the Dracut Town Manager, the Dracut Fire Chief and any other Fire Department 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

Ann Vandal SPR21/1481 Page 2 June 24, 2021 employee concerning the Report, its recommendations, implementation of the recommendations, and the dates and cost of implementation. Previous appeal This request was the subject of a previous appeal. See SPR21/1163 Determination of the Supervisor of Records (May 19, 2021). In my May 19th determination, I directed the Town to provide additional information regarding its fee estimate. Accordingly, the Town was ordered to provide Attorney Myers with a response. The Town provided a response on June 2, 2021. Unsatisfied with the Town’s response, Attorney Myers petitioned this office and this appeal, SPR21/1481, was opened as a result. While this appeal was pending, the Town provided a supplemental response on June 24, 2021. Fee estimate – 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) 2 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). The Town’s June 2nd and June 24th responses In its June 2, 2021 response, the Town states that it provided records responsive to Items 2, 3, 5, and 6. With respect to Item 1, the Town indicates that one of the email accounts has “. . . approximately 2,866 emails . . . either to, from, or copied to one of the other 17 email addresses. [The Town] reviewed 1,000 of them. It took 2.5 hours to print them and 4.25 hours to review and redact them, for a total of 6.75 hours. [The Town] credit[s] you with 2 free hours as required by law, for 4.75 hours. At $25 an hour, the statutory maximum, the cost is $118.75 (4.75 X $25) per 1,000 emails.” With the remaining 1,866 emails, the Town states “. . . 6.75 by 1.8=12.15 hours. At $25 per hour . . . it is $303.75.”

Ann Vandal SPR21/1481 Page 3 June 24, 2021 The Town further states that it has “. . . to recopy the redacted documents so as to prevent viewing the redacted information. [The Town] will only charge $0.05 per page, as set by statute. Approximately 50 of the 1,000 reviewed had information that needed to be redacted and recopied, so that the cost of recopying is: $2.50 leading to a grand total of $306.25” for one of the accounts. The Town notes that the records would have to be redacted as they would contain CORI, reports of rape, sexual assault, domestic violence, executive session minutes and attorney- client privileged information. Item 1 Although the Town has provided the approximate number and cost of producing emails of one of the 18 accounts, it remains unclear the number of email records the Town is looking to segregate or redact in regard to the remaining 17 email accounts and the number of pages there are. Also, the Town did not indicate how many minutes per page it requires to redact the responsive records. The Town must clarify these issues. Items 2 and 3 In her petition, Attorney Myers states “[t]he June 2, 2021 writing claimed that requested items 2, 3, 5, and 6 have already been provided. The response to item 2 was incomplete. It did not include the payroll codes indicating the categories of accrued time used. There was no response to item 3 at all. In terms of item 4, any and all written minutes and audio/visual recordings of executive sessions of the Board of Selectmen’s meetings that mention [a named individual], we have been notified that these minutes have not been completed yet. We reserve the right for release upon completion of the minutes.” In its June 24, 2021 supplemental response, the Town indicates that the records provided contain the requested payroll codes. As such, I find that Attorney Myers’ appeal concerning Item 2 of the request is resolved. With respect to Item 3, the Town states in its June 24th response that “. . . it would have to review the records of about 450 employees to determine which, if any, are responsive.” In my May 19th determination, I encouraged both parties to communicate in order to facilitate producing records efficiently and affordably. I also stated that Attorney Myers may wish to narrow the parameters or include factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). See G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Attorney Myers with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Ann Vandal SPR21/1481 Page 4 June 24, 2021 Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Beth Myers, Esq.