Joshua Fredette v. Williamstown, Town of - Office of the Town Clerk (SPR 20211974)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 11, 2021 SPR21/1974 Nicole E. Pedercini Office of the Town Clerk 31 North Street Williamstown, MA 01267 Dear Ms. Pedercini: On August 4, 2021, this office received your petition on behalf of the Town of Williamstown (Town) seeking an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records, as well as to charge in excess of the statutory fees. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Town furnished a copy of their petition to the requestor, Joshua Fredette. G. L. c. 66, § 10(c). On July 26, 2021, Mr. Fredette requested “…all emails and text messages ‘To’, ‘From’, and ‘CC’ [from] Select Board Members, past (2) and present (5), where they were being sent an email or receiving one…from August 1, 2020 to July 26, 2021.” 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). 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

Nicole E. Pedercini SPR21/1974 Page 2 August 11, 2021 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). Petitions to assess fees 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). 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. 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 this request is not for a commercial purpose. The second 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; 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 seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee estimate 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

Nicole E. Pedercini SPR21/1974 Page 3 August 11, 2021 ($.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). Current Petition In its August 4th petition, the Town states,“I write to you today to make a petition of time, wage and frivolous request. The request was received by me on July 26, 2021 via email. This is one of three requests received by Mr. Josh Fredette on July 26th. This is also by far the largest request out of the 3 or any other request we have received to date…I am requesting 30 more business days to comply with this request due to the large scope.” The Town explains, “[w]e are working with our Attorney and Information Technology (IT) company and it takes them each additional time to relay information to us pertaining to this request. I am also requesting that the Town of Williamstown be permitted to charge $40 per hour as this is a small fraction of what our Attorney and IT Consultant will charge. Lastly, I am requesting the Town be able to charge for our time spent compiling, segregating and redacting the records before production. As I stated above, our Attorney and IT Consultant will be charging us significantly in connection with this request.” Conclusion I find that 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. Fredette’s request See G. L. c. 66, § 10(c). The Town is advised it must provide the records in a manner consistent with the Public Records Law and its Access Regulations. With respect to fees, I find the Town has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Further, it is unclear how the

Nicole E. Pedercini SPR21/1974 Page 4 August 11, 2021 request could not be prudently completed without a fee in excess of $25 per hour; specifically it is unclear why this task cannot be completed by an administrative employee. Please note, Mr. Fredette 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: Joshua Fredette