John F. Weingold v. Monterey, Town of (SPR 20213019)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 18, 2021 SPR21/3019 Jonathan Levin, Esq. Garrity, Levin and Muir LLP 175 Highland Avenue Needham, MA 02494 Dear Attorney Levin: I have received your petition on behalf of the Town of Monterey (Town) requesting an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records, and relief from the obligation to respond to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4) As required by law, the Town furnished a copy of their petition to the requestor, Attorney John F. Weingold. Id. On November 1, 2021, Attorney Weingold requested various categories of records concerning Town staff. 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

Jonathan Levin, Esq. SPR21/3019 Page 2 November 18, 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 an agency’s petition to allow the agency 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 was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency 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 Estimates 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 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

Jonathan Levin, Esq. SPR21/3019 Page 3 November 18, 2021 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06( 4)(g). Current Petition In its November 15, 2021 petition, the Town states “…there are sufficient grounds for [the Supervisor of Records ] to rule that the Town should be relieved of its obligation to respond to the Weingold Records Requests. Should you not rule that the Town is relieved of its obligation to produce a response, I respectfully request that you (i) approve our request for an additional thirty business days to respond and (ii) approve our request for permission to charge Mr. Weingold fees as set forth above.” Request for Relief In its November 15th petition, the Town contends “…it should be relieved of the obligation to respond to the Weingold Records Requests.” The Town notes that “[t]he sheer number of itemized requests supports this result. In addition, the Weingold Records Requests are incredibly broad, cover significant time frames, cover numerous matters, and appear to be intended to intimidate and harass Selectman Weisz and Town Administrator Noe. They are personally directed to said parties, and not the Town. They seek personal texts, phone records, emails and other personal communications. They ascribe alleged actions to individuals cited in the Weingold Records Request and ask for documentation that support such actions. Essentially, they read like a discovery request in a litigation matter (Mr. Weingold is an attorney), and not a Public Records Request under Chapter 66, which proscribes that specific documents, relative to specific matters of Town business be made available for copying or production.” Based on the information provided in the November 15th petition, I find that the Town has not demonstrated the requests are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c). Extension of Time to Produce Responsive Records The Town states, “[i]n the alternative, if you find that the Town is required to respond, I would respectfully request that you provide the Town with an extension of 30 additional business days to do so.” The Town explains that its “…full time administrative employee (and only

Jonathan Levin, Esq. SPR21/3019 Page 4 November 18, 2021 general administrative employee) is the Town Administrator (Ms. Noe)…Ms. Noe is also the subject of most of the requests. In order to protect the process and avoid any argument that full compliance with the Weingold Records Requests is accomplished (if the Town is not relieved of its requirement to respond), I will ask the Select Board to hire a person to review the Town records required to comply with the Weingold Record Requests.” In light of the volume of responsive records and the capacity of the Town to produce the request without an extension, the Town has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The Town is granted an extension of 30 business days. Request to Charge for Time Spent Segregating or Redacting Responsive Records The Town notes, “[i]If Ms. Noe were required to only devote all of her time and attention to the Weingold Records Requests, I would expect that she could not perform her other administrative functions for the Town. I believe that a proper allocation of Ms. Noe’s resources would be no more than 4 hours per week of researching Town records in response to the Weingold Records Requests. In either event, the undersigned seeks your approval to charge Mr. Weingold up to $25.00 an hour for up to 40 hours for the time anticipated to comply with the Records Requests.” Although the Town states the request are “…incredibly broad, cover significant time frames, cover numerous matters, and appear to be intended to intimidate and harass Selectman Weisz and Town Administrator Noe,” it has not provided information regarding what records it intends to produce or why such records are likely to contain exempt information. Conclusion I find the Town has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Town from charging for segregation and redaction that is required by law at $25 an hour. When preparing a fee estimate for the provision of the requested records, the Town is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Town must provide a response to Attorney Weingold within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Attorney Weingold 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).

Jonathan Levin, Esq. SPR21/3019 Page 5 November 18, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: John F. Weingold, Esq.