Bob Murchison v. Sherborn, Town of (SPR 20213172)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 13, 2021 SPR21/3172 Amanda Zuretti, Esq. Petrini & Associates, P.C. 372 Union Avenue Framingham, MA 01702 Dear Attorney Zuretti: I have received your petition on behalf of the Town of Sherborn (Town) requesting an extension of time to produce records, 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, Bob Murchison. G. L. c. 66, § 10(d)(iv). In a letter dated November 19, 2021, Mr. Murchison requested “… [e]mail or written correspondence from/to any town official in the period March 2021 to the present.” On November 29, 2021, Mr. Murchison narrowed the scope of his request to “…the named parties and their incoming or outgoing communications with members or employees of the following: Board of Health, Conservation Commission, Groundwater Protection Committee, Planning Board, Select Board and Zoning Board of Appeals.” 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; 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

Amanda Zuretti, Esq. SPR21/3172 Page 2 December 13, 2021 (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). 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). Extension of Time to Produce Responsive Records In its petition dated December 3, 2021, the Town “…requests that the Supervisor allow the Town the maximum 30 business day extension pursuant to M.G.L. c. 66, § 10(c).” The Town states, “[t]o search the Town’s electronic records and compile a set for review by the Town’s records custodians, the Town’s Information Technology (‘IT’) consultant will need to run various queries of the Town’s email and electronic document storage systems using keywords based on the requests.” The Town posits that it “...does not have an employee capable of performing this function in house and must use the consultant for these purposes, otherwise it would take the Town substantially more time to respond to Mr. Murchison’s requests. Because not all of the Town’s board and committee members have Town email accounts, some of the records responsive to Mr. Murchison’s requests may consist of emails that are not available on the Town’s email server. Instead, copies of emails must be obtained from each of the individual members of the Board of Health, Conservation Commission, Groundwater Protection Committee, Planning Board, Select Board and Zoning Board of Appeals.” 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. 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

Amanda Zuretti, Esq. SPR21/3172 Page 3 December 13, 2021 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 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).

Amanda Zuretti, Esq. SPR21/3172 Page 4 December 13, 2021 Request to Charge for Time Spent Segregating or Redacting Responsive Records The December 3rd petition states, “[g]iven the anticipated exempt information that will be in some of the records responsive to the requests, the Town requests that it be allowed to charge for the time that will be spent segregating and redacting the records prior to making them available to the requester pursuant 950 CMR 32.06(4)(h). Further, given that only counsel reasonably can make a determination regarding the existence of the attorney-client privilege, at great cost to the Town in terms of staff time and resources and legal costs, and the need to involve the Town’s IT consultant, the Town further petitions to allow the Town to charge the requester fees in excess of the $25 per hour statutory maximum rate to respond to their requests pursuant to G.L. c. 66, s. 10(d)(iv).” The Town asserts that “[m]any of the records requested are likely to contain information that is exempt from disclosure under one or more exemptions in the Public Records Law, M.G.L. c. 4, § 7(26), and will either be withheld or will need to be redacted before they can be produced to Mr. Murchison.” The Town explains, “[w]hile an exhaustive list of the potential exempt categories is not possible until the records are actually reviewed, we anticipate that some of the records may contain personnel information protected from disclosure under exemption (c), inter- and intra-agency emails related to policy positions being developed by the Town protected from disclosure under exemption (d), personal information related to public employees protected under exemption (o), and privileged attorney-client communications protected from disclosure under the common law attorney-client privilege recognized in Suffolk Construction v. DCAM, 449 Mass. 444 (2007). Accordingly, compiling responses to Mr. Murchison's requests will require a careful review of the records and segregation/redaction of exempt information within the records by counsel.” The Town notes: 1) For the Town’s IT consultant’s time to conduct queries to assemble review sets of the responsive records for review and redaction, we estimate the search time for the consultant will take approximately 3 hours total for all of the requests on which they will provide assistance. The Town petitions to charge the consultant’s hourly rate of $125.00 for the query and retrieval process to search and assemble the records for the Town’s review. 2) For the time to be spent by individual department heads in searching for and responding to the request, the Town petitions to charge their actual hourly rates as follows: a. Town Clerk: $42.93 b. Health Administrator: $32.49 3) For counsel’s review and redaction of potentially exempt records (to be initially flagged by Town officials in their review), the Town requests that the Supervisor allow the Town to charge the rate it will be charged by counsel for such review, $195 per hour.

Amanda Zuretti, Esq. SPR21/3172 Page 5 December 13, 2021 Conclusion I find the Town has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction, segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). In light of the factors in G. L. c. 66, § 10(d)(iv), I find the Town may assess a fee limited to $75.00 per hour for attorney review and the IT consultant’s search. In addition, the Town may charge the Town Clerk’s hourly rate of $42.93 and the Health Administrator’s hourly rate of $32.49 for the detailed tasks. G. L. c. 66, § 10(d)(iii). Further, this office encourages Mr. Murchison and the Town continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii). 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 and how the redactions are required by law. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Town must provide a response to Mr. Murchison within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Murchison may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). 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), l0A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Bob Murchison Jackie Morris