Kathleen Grant v. Andover, Town of - Town Clerk (SPR 20212054)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 24, 2021 SPR21/2054 Austin Simko Town Clerk/Records Access Officer Town of Andover 36 Bartlet Street Andover, MA 01810 Dear Mr. Simko: I have received the petition of Kathleen Grant appealing the response of the Town of Andover (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 8, 2021 and July 22, 2021, Ms. Grant made the following requests: June 8th request [1] The total community services’ budgets and the individual departments’ budgets from 2015 to the recommended budget 2022. Please break it out like the annual report into personnel services and other expenses. [2] I would also like to know by year 2015 – 20121 [sic] the number occasions and/or agreements that have a non disclosure clause and/or contain non disclosure language and the amounts paid out. . . . [3] I would like to know how [sic] money Andover spent on lawsuits from 2015 - 2021. On June 22, 2021, the Town provided a response to Items 1 and 2, and a fee estimate for Item 3. After payment of the fee, the Town provided records responsive to Item 3 on July 13, 2021. July 22nd request [1] The number of occasions and/or agreement that have non-disclosure clauses or contain such language by year by the town from 2008-2014 [2] All information regarding any financial settlements that occurred between 2015 and the present with former town employees including, but not limited to the following: 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

Austin Simko SPR21/2054 Page 2 August 24, 2021 • the amount of the settlement • the job title of the former town employee who received the settlement • the job level of the former town employee; ie, manager or staff or any other level that applies • the reason for the settlement • any stipulations placed on the recipient for receiving the settlement • the date the settlement was agreed to by the town • the date the settlement was paid out by the town • the account that the money for the settlement was drawn on • whether or not the financial settlement included non-disclosure agreements • whether or not the recipient of the financial settlement also entered into an agreement with the town that included non-disclosure language. With respect to the above request, the Town provided a response on August 5, 2021, which included a fee estimate. Unsatisfied with the Town’s June 22nd, July 13th, and August 5th responses, and objecting to the fees, Ms. Grant petitioned this office and this appeal, SPR21/2054, was opened as a result. Fee estimates – 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). Current appeal June 8th request Based on her appeal petition, it appears Ms. Grant’s appeal pertains to only Items 2 and

Austin Simko SPR21/2054 Page 3 August 24, 2021 3 of this request. Item 2 Regarding Item 2, the Town indicates “[s]ince 2015, the Town departments have entered into eight agreements that contain nondisclosure provisions. It is not possible to ascertain ‘the amounts paid out’ for these provisions because these agreements are not always accompanied by financial compensation from the Town, and because the agreements containing non-disclosure provisions are complex contracts where multiple provisions provide value to both parties.” Based on the Town’s response it is unclear whether it possesses records regarding “the amounts paid out” in the non-disclosure agreements. Please be advised, the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Also, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Town must clarify whether responsive records exist. Item 3 Ms. Grant inquires, “[i]s $350 a reasonable cost, 14 - 26 hours for the information provided in the July 13 response? . . . Letter 2, 7/13/21, has the lawsuit answers. It is difficult for me to see how this took 14 hours ($25/hr) - 26 hours ($13.50/hr).” On June 22, 2021, the Town provided a fee estimate of $350 to produce records responsive to Item 3. Upon payment of fees, the Town provided responsive records on July 13, 2021. Where it appears Ms. Grant has paid the fees, and the Town has produced the requested records, it is unclear the basis of Ms. Grant’s appeal. Ms. Grant is advised that all petitions for appeal “shall specifically describe the nature of the requester’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(1)(f). Accordingly, Ms. Grant must describe her specific objections to the Town’s June 22nd and/or July 13th responses. July 22nd request Item 1 Regarding Item 1, the Town states “[b]etween 2008 and 2014, 122 non-seasonal, non-auxiliary, non-temporary employees were terminated. This represents the employees who potentially have separation or other agreements containing non-disclosure provisions. To determine whether these former employees had agreements containing non-disclosure provisions, Town staff would need to devote a significant amount of time to identifying pertinent files in the Town records archives, and reviewing them for the particular provisions your request relates to. I conservatively estimate that our response would take five minutes per employee

Austin Simko SPR21/2054 Page 4 August 24, 2021 file.” As such, the Town provides the “. . . following estimate . . . to search for, compile, and segregate the records requested at the hourly rate of the lowest paid employee capable of performing the task (not exceeding $25/hr.): $25/hour x 10 hours = $ 250.00 2 hours$ $ - 50.00 Total Due: $ 200.00” Based on the Town’s response, it is unclear why it requires 10 hours to produce responsive records. Specifically, it is uncertain how many hours were allocated to searching, compiling, and segregating the records. It is additionally not clear how the Town requires 5 minutes to review each file. The Town must provide additional information regarding the contents of these files and the number of pages there are in each file. In her appeal petition, Ms. Grant claims “[t]he first response in letter 3, 8/5/21, misinterpreted my first question, a request for NDAs from 2008 - 2014. It talks about including school department data when I clearly asked for town data.” Based on the foregoing, I find the Town must clarify whether its interpretation of Item 1 includes data from the school department. Item 2 Regarding Item 2, the Town states “. . . you have asked for ‘financial settlements’ with former employees. The Town has not entered into any agreements with former employees. Between 2015-present, the Town only entered into agreements with then-current employees. Construing your request reasonably, I will speak to pertinent agreements with then-current employees. I am unclear what kinds of agreements you are referring to. The Town has not settled pending claims with then-current employees between 2015-2021. Also, in the separation agreements with departing employees, the Town has only made payments based on employees’ accrued benefits under the terms of collectively-bargained contracts. No agreement has been entered into where other or additional amounts have been provided to a departing employee. Therefore, I am uncertain how to fulfill your request for ‘financial settlements.’” Please be advised that it is permissible for the custodian of records to 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.” See G. L. c. 66, § 10(b)(vii). Based on the Town’s response, Ms. Grant is encouraged to provide the Town with the needed clarification regarding this portion of request. G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public record sought); -se-e -al-so- Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. l 784CV02087, at ----------------------- 2 (January 23, 2019) (holding that “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.”). Also, the Town must use its knowledge of the records to facilitate the provision of any responsive records. The duty to comply with requests for records

Austin Simko SPR21/2054 Page 5 August 24, 2021 extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii), (b)(ii). Conclusion Accordingly, the Town is ordered to provide Ms. Grant with a response to the request, provided in a manner consistent with this order, the Public Records Law and its 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: Kathleen Grant