Gerald P. Graham v. Holbrook, Town of - Town Clerk (SPR 20212770)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 29, 2021 SPR21/2770 Jeanmarie Tarara Town of Holbrook 50 North Franklin Street Holbrook, MA 02343 Dear Jeanmarie Tarara: On October 22, 2021, this office received your petition on behalf of the Town of Holbrook (Town) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § l0(c); G. L. c. 66, § 10(d)(iv). As required by law, the Town furnished a copy of their petition to the requestor, Gerald P. Graham. G. L. c. 66, § 10(c). On October 14, 2021, Mr. Graham requested “…all emails sent and received from Town of Holbrook email addresses from all employees within Town Hall from October 14, 2019 through close of business October 15, 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

Jeanmarie Tarara SPR21/2770 Page 2 October 29, 2021 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 ($.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

Jeanmarie Tarara SPR21/2770 Page 3 October 29, 2021 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 The Town’s October 22nd petition states the following, “[p]ursuant to M.G.L. c. 66, section 10(c), the Town requests an additional 30 business days beyond the time specified under the statute (25 business days) - for a total of 55 business days from the date of receipt payment for the work, to respond to the portion of the request that seeks legal invoices.” The Town explains that “[a]n initial search of the Town’s email system identified 250,831 emails which are potentially responsive to this request. As a result, this request will take a significant amount of time to respond to given the volume of records request.” The Town contends that it “…should be permitted to charge a fee to produce these records because the records will need to be reviewed and redacted for several reasons.” The Town notes that “[n]umerous Town Departments are located in Town Hall, including the Town Accountant, Assessors, Building Department, Community Development, Emergency Management, Health Department, Human Resources, Public Works, the Select Board, Town Administrator, Town Clerk, Town Moderator, Treasurer/Collector, and Veteran’s Agent.” Further,“[m]any of these email communications will include information which the Town is required by law to redact. M.G.L. c. 4, § 7(26)(a). For example, abatement applications sent to the Board of Assessors must be redacted pursuant to M.G.L. c. 59, §60. Emails from Community Development are likely to contain trade contractor scores generated pursuant to bidding processes which must be redacted pursuant to M.G.L. c. 149A, § 8(f). Emails received or sent by Human Resources are likely to contain the home or email addresses and phone numbers of Town employees and their family members which must be redacted pursuant to M.G.L. c. 66, § 10B and M.G.L. c. 4, § 7(26)( o )-(p).” The Town posits that “[t]hese records also contain the content of discussions between the Town and its attorneys, for the purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney-client privilege.” Citing exemption (c), the Town notes that“…the Health Department’s emails are likely to contain private medical information of identifiable individuals; the Human Resource Department’s emails are likely to contain personnel information as well as private medical information and other information of a personal nature regarding identifiable employees; and all Departments are likely to have received emails including the private phone numbers and email addresses of private citizens.” In addition, “[t]he responsive emails may also contain inter- agency or intra-agency communications relating to policy positions being developed by the

Jeanmarie Tarara SPR21/2770 Page 4 October 29, 2021 Town which are exempt pursuant to M.G.L. c. 4, § 7(26)(d). Community Development’s emails are likely to contain proposals and bids subject to redaction under M.G.L. c. 4, § 7(26)(h). Additionally, these emails may contain records regarding layout or security of buildings or infrastructure which may require redaction pursuant to M.G.L. C.4, § 7(26)(n).” Conclusion I find the Town has established good cause for a time extension of 30 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the Town may assess a fee for segregation and redaction. Please note, Mr. Graham 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: Gerald P. Graham