Janine Swartz v. Danvers, Town of - Town Clerk (SPR 20220039)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 14, 2022 SPR22/0039 Catherine S. Ellsworth Town Clerk Town of Danvers One Sylvan Street Danvers, MA 01923 - 2790 Dear Ms. Elsworth: I have received your petition on behalf of the Town of Danvers (Town) requesting an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On December 28, 2021, Janine Swartz, along with a number of other requestors, requested “between the dates of 9/1/21 and 12/28/21: all communications” involving specified individuals and multiple key words. Open Meeting Law I note that two of the requestors subsequently emailed this office objecting to the Town’s petition on January 8, and January 10, 2022. Those emails also raise several issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (OAG) and not this office, I am unable to address those issues in this determination. See G. L. c. 30A, § 23. If unresolved issues remain, I encourage the parties to contact the OAG for a determination concerning the Open Meeting Law matters. 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: 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 S. Ellsworth SPR22/0039 Page 2 January 14, 2022 (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). 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 explains the following: An initial search ofthe Town’s email system identified 16,320 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. . . . The Town will be unable to produce the records during normal business hours of operation without an extension in light of the size of the request. 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 payment for the work, to respond to the portion of the request that seeks legal invoices. It should be noted that notwithstanding the present fee request, Danvers has provided approximately 16 pages of email correspondence responsive to the request for the date range December 20-21, 2021. Additionally on January 3, 2022 Danvers received a revised request with modified date range 9/10/21- 9/30/21, and 12/18/21-1/3/21. Danvers is continuing to process this request and expects that any fee request will be modified accordingly, and provided this information to each of the Requestors noting that modification of the scope of the request will significantly mitigate the expense of review and production of responsive documents.

Catherine S. Ellsworth SPR22/0039 Page 3 January 14, 2022 I find in light of the need to collect and segregate the request, as well as the the capacity of the Town to produce the request without an extension, and the efforts undertaken by the Town so far in fulfilling the current and previous requests, the Town has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). 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). 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 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).

Catherine S. Ellsworth SPR22/0039 Page 4 January 14, 2022 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). Current Petition In its January 6, 2022 petition, the Town states the following: 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 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 and is therefore protected by the attorney-client privilege. . . . Accordingly, the records will need to be reviewed to determine if they contain information protected by the attorney-client privilege and then any necessary redactions will need to be made. The requested records are likely to contain information exempt pursuant to the medical, personnel and privacy exemptions contained within M.G.L. c. 4, § 7(26)(c). . . . 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. Accordingly, the records will need to be reviewed and potentially redacted to protect any medical or other private information pursuant to Exemption (c). 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 M.G.L. c. 4, § 7(26)(d). 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.

Catherine S. Ellsworth SPR22/0039 Page 5 January 14, 2022 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. 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. Swartz 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: Janine Swartz