Kathy Horigan v. Sherborn, Town of - Town Clerk (SPR 20220311)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 14, 2022 SPR22/0311 Christopher L. Brown, Esq. Petrini & Associates, P.C. Counselors at Public Law 372 Union Avenue Framingham, MA 01702 Dear Attorney Brown: On February 8, 2022, this office received your petition on behalf of the Town of Sherborn (Town) seeking an extension of time to produce records, a waiver of statutory limits on fees that may be assessed in responding to the request 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); see also 950 C.M.R. 32.06(4). As required by law, the Town furnished a copy of its petition to the requestor, Kathy Horigan. G. L. c. 66, § 10(c). On January 27, 2022, Ms. Horigan requested, “[a]ll emails, texts, meeting notes, video regarding the issue of [an identified individual] stepping down. Between board of selectmen or any other town employees or outside emails phone calls and texts.” 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. 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

Christopher L. Brown, Esq. SPR21/0311 Page 2 February 14, 2022 G. L. c. 66, § 10(c). 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 February 8, 2022 petition, 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 notes, “[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 request.” In light of the capacity of the Town to produce the request without an extension, I find 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 The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the

Christopher L. Brown, Esq. SPR21/0311 Page 3 February 14, 2022 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 February 8th petition, the Town notes 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 [Ms. Horigan]…Given the anticipated exempt information that will be in most 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).” 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), 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 Ms. Horigan’s requests will require a careful review of the records and segregation/redaction of exempt information within the records by counsel.”

Christopher L. Brown, Esq. SPR21/0311 Page 4 February 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. Fee in Excess of $25.00 per hour In its petition, the Town seeks permission “…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). Specifically, the Town requests the following: 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 2 hours total. 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. Interim Town Administrator: $60.00 (the Town estimates approximately 5 hours of time will be spent by the Interim Town Administrator searching for the records responsive to Ms. Horigan’s request) 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. The Town estimates approximately 5 hours of time for counsel’s review.” 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 assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). The Town may assess the Town Administrator’s hourly rate of $60 per hour. In addition, I find the Town may assess fees limited to $75.00 per hour for attorney review and the IT consultant’s query and retrieval process. Conclusion 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 fees in excess of $25 per hour for the provision of the requested records as allowed for in G. L. c. 66, § 10(d)(iv).

Christopher L. Brown, Esq. SPR21/0311 Page 5 February 14, 2022 Please note, Ms. Horigan 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: Kathy Horigan Jacklyn R. Morris