Ashley Maloy v. Danvers, Town of - Town Clerk (SPR 20220038)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 12, 2022 SPR22/0038 Catherine Ellsworth Town Clerk Records Access Officer Town of Danvers One Sylvan Street Danvers, MA 01923 Dear Ms. Ellsworth: I have received the petition on behalf of the Town of Danvers (Town) requesting permission to charge for time spent segregating and redacting responsive records and an extension of time to produce records. 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 this petition to the requestor. G. L. c. 66, § 10(c). On January 3, 2021, Ashley Maloy requested, “all communications written by/to/from/between [a list of named individuals], all containing any of the following key words/phrases: ‘mask,’ ‘mandate,’ ‘emergency,’ ‘Omicron,’ ‘Delta,’ ‘Covid,’ ‘uptick,’ ‘PCR,’ ‘risk,’ ‘benefit,’ ‘testing,’ ‘EUA,’ ‘informed consent,’ ‘right of refusal,’ ‘vaccine,’ ‘VAERS,’ [and] ‘passport’ [between the dates 9/10/21-9/30/21 and 12/18/21-1/3/22].” 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 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

Catherine Ellsworth SPR22/0038 Page 2 January 12, 2022 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 January 6, 2022 petition, the Town states: An initial search of the Town’s email system identified 5,683 emails which are responsive to this request. As a result, this request will take a significant amount of time to respond to given the volume of records requested. Therefore it is not possible to respond within 10 business days…Pursuant to M.G.L. c. 66, § 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 [of] payment for the [records] … It should be noted that…the Town has [already] provided approximately 16 pages of [responsive records]… I find in light of the volume of the request, the capacity of the Town to produce the request without an extension, and the efforts already undertaken by the Town to provide responsive records, 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. Please note the time may begin to run once the Town receives payment. G. L. c. 66, § 10(c). 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).

Catherine Ellsworth SPR22/0038 Page 3 January 12, 2022 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 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 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 – 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 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 January 6, 2022 petition, the Town states: The Town officials listed in the request are likely to have had discussions with the Town’s attorneys during the time period specified, including discussions by email which may contain the words indicated in the request. As a result, the requested

Catherine Ellsworth SPR22/0038 Page 4 January 12, 2022 records may 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…Accordingly, the records will need to be reviewed to determine if they contain information protected by the attorney-client privilege … The requested records are likely to contain information exempt pursuant to….[Exemption (c) of the Public Records Law]…Given the nature of the terms included within the request, as well as the inclusion of the Board of Health, Director of Public Health, and Public Health Nurse within the request, the records requested are likely to contain medical information and other private information regarding identifiable information … Lastly, the responsive records may also contain inter-agency or intra-agency communications relating to policy positions being developed by the Town which are exempt pursuant to [Exemption (d) of the Public Records Law]. The topics listed within the request were, and continue to be, the subject of much discussion and deliberation between Town officials, including the ongoing development of the Town’s policy positions on these issues. Based on the Town’s petition, 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 or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, 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, Ms. Maloy 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)

Catherine Ellsworth SPR22/0038 Page 5 January 12, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Ashley Maloy