Elizabeth Warren v. Lexington, Town of (SPR 20213149)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 6, 2021 SPR21/3149 Mina S. Makarious, Esq. Town of Lexington 1625 Massachusetts Avenue Lexington, MA 02420 Dear Attorney Markarious: I have received your petition on behalf of the Town of Lexington (Town) seeking an extension of time to furnish copies of a requested record, permission to charge for time spent segregating or redacting responsive records, as well as a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor, Elizabeth Warren. G. L. c. 66, § 10(d)(iv). In a letter dated November 16, 2021, Ms. Warren requested various categories of records “…related to the construction of 7 Fulton Road and the proposed removal of a white pine at 5 Fulton Road.” Petitions 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

Mina S. Makarious, Esq. SPR21/3149 Page 2 December 6, 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) must 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). Extension of Time to Produce Responsive Records In its petition dated December 1, 2021, the Town notes the “… [r]equests seek information on the construction at 7 Fulton Road and the possible removal of another nearby tree, a white pine at 5 Fulton Road. More specifically, Ms. Warren requested over eighteen months of communications between dozens of email addresses, including my email and the emails of any other Anderson & Kreiger attorneys, relating to the same; any emails to or from the Town and the principal of the developer; 3.5 years’ worth of emails pertaining to the Tree Warden’s qualifications; any and all documents relating to possible tree removal at 7 Fulton Road; and more.” The Town “…estimates that the Requests will require the review of over 16,000 potentially responsive records. That magnitude of the Requests means that the Town will be unable to produce records within ten business days…The Town respectfully requests the Supervisor allow it thirty business days following the Supervisor’s response to produce documents.” I find that in light of the volume of responsive records 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 Ms. Warren’s request. Petition 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).

Mina S. Makarious, Esq. SPR21/3149 Page 3 December 6, 2021 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) 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 December 1st petition, the Town request “…permission, pursuant to G.L. c. 66, § 10(d)(iv) and 950 C.M.R. § 32.06(4)(g) and (h), to charge fees in excess of $25 per hour to compile, segregate, and redact certain records initially requested on November 16, 2021 by Ms. Elizabeth Warren.”

Mina S. Makarious, Esq. SPR21/3149 Page 4 December 6, 2021 The Town states, “[t]o adequately identify and protect privileged information, that review must be performed by a person familiar with the context who is able to identify communications that seek or reflect legal advice, especially when direct communication with an attorney is not involved. The format and manner in which the records are kept necessitate a document-by- document review to identify, segregate, and redact such records.” Further, “…the Town requests that Ms. Warren reimburse the Town for the actual cost of attorney review, segregation, and redaction at $130 per hour, which is one-half the minimum rate for an Anderson & Kreiger attorney qualified to review these documents and less than the rate for an Anderson & Kreiger paralegal.” The Town states: “1. Pursuant to Exemption (c), the Town will withhold any personnel files, or any other materials relating to specifically named individuals, where the disclosure of the materials may constitute an unwarranted invasion of personal privacy. 2. Pursuant to Exemption (d), the Town will withhold any internal documents ‘relating to policy positions being developed by the’ Town. 3. Pursuant to Exemption (e), the Town will withhold any ‘materials …which are personal to [particular Town employees] and not maintained as part of the files of the’ Town. 4. Pursuant to Exemption (o), the Town will redact ‘the home address[es], personal email address[es] and home telephone number[s]’ of its employees to the extent that they appear in otherwise responsive documents.” Although the Town states, “[t]he format and manner in which the records are kept necessitate a document-by-document review to identify, segregate, and redact such records,” it has not provided information regarding what records it intends to produce and 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 an hourly rate of $75. With respect to time, it is my determination that the School has established good cause for a time extension of 30 business days as described above. To the extent possible, the Town must provide responsive records on a rolling basis. 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 --

Mina S. Makarious, Esq. SPR21/3149 Page 5 December 6, 2021 reasonable). The Town must provide a response to Ms. Warren within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, the requestor 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: Elizabeth Warren