Brian Carroll v. Norwell Town Counsel (SPR 20220407)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 23, 2022 SPR22/0407 Robert Galvin, Esq. Town Counsel Town of Norwell 10 Enterprise Street, Suite 3 Duxbury, MA 02332 Dear Attorney Galvin: I have received your petition on behalf of the Town of Norwell (Town) seeking an extension of time to produce records, a waiver of statutory limits on fees that may be assessed in responding to a public records request, permission to charge for time spent segregating or redacting responsive records, and relief from the obligation to respond to the request. 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 February 4, 2022, Brian Carroll requested six categories of records. 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 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

Robert Galvin, Esq. SPR22/0407 Page 2 February 23, 2022 (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 The Town contends that: The Town and Select Board contend that the request cannot be prudently completed without minimally the redaction or segregation of potentially one hundred or more communications from February of 2021 to the present involving four different attorneys, the Town Administrator and at least several members of the Select Board and that the segregation or redaction for attorney-client privileged communications requires specialized knowledge of the law of attorney- client privilege and also knowledge of facts surrounding [the subject of the requested records] … Finally, to the extent the records are to be produced, the Town requests 20 business days from the date of the decision in this matter and receipt of the estimated fee from the requestor to comply with the production of the redacted records. In light of the need to collect and segregate the request as well as the capacity for the Town to produce the records without 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 of 20 days. G. L. c. 66, § 10(c)(i)-(ii). The Town is granted an extension of 20 business days. Please note the time may begin to run once the Town receives payment. G. L. c. 66, § 10(c). 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

Robert Galvin, Esq. SPR22/0407 Page 3 February 23, 2022 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). 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) 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).

Robert Galvin, Esq. SPR22/0407 Page 4 February 23, 2022 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 petition, the Town stated: [I]f the Supervisor requires a privilege log or production of non-privileged communications, the Town and Select Board request permission to assess fees for time spent to segregate and/or redacting each and every attorney-client such communication and/or preparing a privilege log… Please be advised, records custodians may assess fees for time spent segregating or redacting records where such segregation or redaction is required by law. See 950 C.M.R. 32.07(2)(d) (stating that fee for segregation or redaction is permissible when approved by Supervisor or when required by law (emphasis added)). Where the Town only seeks to assess fees pursuant to the attorney-client privilege which is required by law, I find it unnecessary to opine on whether the Town may assess fees for segregating and redacting the records. Fees in Excess of $25 per hour In its petition, the Town also states the following concerning its request to charge a fee in excess of $25.00 per hour: Accordingly, the lowest paid person capable of performing this task is Ellen McKenna, an administrative assistant to the Select Board, who is employed in various capacities by the Select Board and other Town Boards and has sufficient experience to be able to segregate and/or redact the communications. Ms. McKenna is paid $28.86 an hour which is more than the $25.00 threshold. There is no lower paid employee of the town who has the necessary skill to perform this work. 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). I find the Town may assess a fee limited to $28.86 per hour. Request for Relief In its petition, the Town stated: The Town also contends that this request appears to be expressly motivated in fact by a desire to embarrass the Select Board and/or Chair of the Select Board, Mr. Graham, who stated that if there was a suit which had been threatened that Mr.

Robert Galvin, Esq. SPR22/0407 Page 5 February 23, 2022 Carroll and others would not prevail, that he was relying in the advice of the municipal attorneys he consulted with in rendering his vote, and that he would pay for the legal fees associated with the claim were one to be brought. In fact…Brian Carroll, in his owns words, connects this public records request to the litigation and to the words of Mr. Graham: “But since Bruce did promise to pay the Town’s cost of this litigation out of his own pocket, I guess we can accommodate him…This reminds me, though. I think the Town has a right to know what the Board and Bruce have spent/are spending trying to avoid the will of 2/3 of the Town’s taxpayers. So I am attaching a public records request here…” This request is therefore motivated therefore not only to determine what the town’s legal expenses were or are and what will happen with the cost and expense but also by a desire to harass, annoy and embarrass Mr. Graham and add to the expenses being incurred through the use of punitive and overbroad public records requests. Shortly after the service of the Town’s response to the most recent public records request and within a matter of only a few hours, the requestor, Brian Carroll, responded again to Town Counsel via and demanded a privilege log be produced relating to privileged information which he stated would form the basis for his further challenge to the Town’s to withhold certain records … Based on the information provided in the Town’s petition, I find that the School has not demonstrated the requests are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c). Conclusion Accordingly, I find the Town has established good cause for a time extension of 20 business days as described above. Additionally, the Town is reminded that it need not petition the Supervisor to assess fees for segregation and redactions that are required by law. Further, as described above, the Town may assess a fee limited to $28.86 per hour for segregating and redacting responsive records. Please note, Mr. Carroll 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).

Robert Galvin, Esq. SPR22/0407 Page 6 February 23, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian Carroll