Peter Diamond v. Medfield, Town of - Town Clerk (SPR 20212227)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 14, 2021 SPR21/2227 Antoine Fares, Esq. Town Counsel, Town of Medfield Norris, Murray & Peloquin, LLC 315 Norwood Park South Norwood, MA 02062 Dear Attorney Fares: I have received the petition of Peter Diamond appealing the response of the Town of Medfield (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 23, 2021, following a previous request and response from the Town, Mr. Diamond modified his request for “Email records of [four named individuals] from May 14, 2021, through July 16, 2021.” The Town responded on July 27, 2021, requesting that Mr. Diamond narrow the scope of his request. 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 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

Antoine Fares, Esq. SPR21/2227 Page 2 September 14, 2021 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 In his appeal petition, Mr. Diamond requests that the Town not be permitted to charge fees and contends “that the Town of Medfield did not respond according to MGL Chapter 66 Section 10(b) and 950 CMR 32.06(4)(b) in the required timeframe required by law.” The Town’s August 3rd Petition and August 27th Response On August 3, 2021, the Town petitioned this office for an extension of time. See SPR21/1970 Supervisor of Records Determination (August 11, 2021). In my August 11th determination, I granted the Town “an extension of 15 business days to furnish copies of records responsive to Mr. Diamond’s request.” See G. L. c. 66, § 10(c). On August 27, 2021, the Town provided “emails of the listed individuals from May 14 through July 16, 2021 related to . . . the Town’s disciplinary investigation and/or the circumstances leading up to [Mr. Diamond’s] resignation.” The Town goes on to explain that if Mr. Diamond “would like the Town to proceed with providing [him] all other emails (an approximate total of 11,078 emails) [an attachment] includes the estimated cost to comply with that request.” The Town attached a fee estimate for $13,797.50. A records access officer may “petition the supervisor of records for an extension of the time for the agency or municipality to furnish copies of the requested record, or any portion of the requested record, that the agency or municipality has within its possession, custody or control and intends to furnish.” G. L. c. 66 § 10(c). Accordingly, it is unclear how the provision of a fee estimate complies with an extension granted under G. L. c. 66 § 10(c), or my August 11th determination. The Town’s September 1st Response In a letter to this office and Mr. Diamond on September 1, 2021, the Town “contends that Diamond’s July 23 request is designed to intimidate, harass and retaliation against the Town for initiating an investigation into his [alleged] misconduct which ultimately lead to his resignation.” The Town goes on to contend that “[e]ven after the Town offered to assist him with modifying his request to records related to his employment with the Town and provided him with those records, Mr. Diamond continues to pursue his frivolous request for thousands of emails that do not relate to him.” The Town asks that this office “[r]elieve the Town of its obligation to provide copies of the records sought that do not relate to Diamond given that a request for those records has no purpose other than to harass, intimidate and retaliate against the Town.” Petitions seeking an extension of time or seeking relief of the custodian’s obligation to provide records “must be made by a records access officer within 20 business days following receipt of a request for public records, or within ten business days following the records access

Antoine Fares, Esq. SPR21/2227 Page 3 September 14, 2021 officer’s receipt of a determination by the Supervisor that a requested record constitutes a public record.” 950 C.M.R. 32.06(4)(d). In this case, the Town submitted the request for relief on September 1, 2021, more than twenty business days after receipt of Mr. Diamond’s July 23rd request. In light of the fact that the Town has not demonstrated it submitted a timely petition, relief from the obligation to provide responsive records cannot be granted. See 950 C.M.R. 32.06(4)(d). This office encourages Mr. Diamond and the Town to continue to communicate in order 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). To the extent possible, the Town must provide responsive records on a rolling basis. Conclusion Accordingly, the Town is ordered to provide Mr. Diamond with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Peter Diamond