Patrick Higgins v. Swansea, Town of - Town Administrator (SPR 20220694)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 28, 2022 SPR22/0694 Mallory Aronstein Town Administrator Town of Swansea 81 Main Street Swansea, MA 02777 Dear Ms. Aronstein: I have received your March 23, 2022 petition on behalf of the Town of Swansea (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, 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 its petition to the requestor, Mr. Patrick Higgins. On March 19, 2022, Mr. Higgins requested, “emails and texts sent or received on a town-issued device or any other correspondence from [a list of certain individuals] from Dec. 1, 2021 to Mar. 20, 2022.” 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

Mallory Aronstein SPR22/0694 Page 2 March 28, 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 In its March 23, 2022 petition, the Town stated: In accordance with [the Public Records Law], I hereby petition that the Town…be granted an additional 30 business days beyond the default statutory maximum of 25 business days in order to respond to this records request. In support of this petition, I would note that the records request seeks all emails, texts and other correspondence that was either received or sent by [the Town administrator], [the Town administrator’s assistant], or any member of the Swansea Board of Selectmen over a close to four-month period. The records request is without limitation in terms of subject matter, and will require a review of each of potentially thousands of communications in order to determine if any exemptions from disclosure apply. Moreover, given the sensitive nature of the emails of [the Town administrator] and the Selectmen, [the Town administrator] will have to undertake this search, segregation, and redaction [her]self, fitting it into [her] already full schedule … [T]his request is part of a series of contemporaneous requests…[that] comes a mere month after the same requestor made another broad records request of the Selectmen’s Office…[B]oth myself and Town Counsel have spent significant time in dealing with both this prior request and this new request… I find in light of the need to collect and segregate the request, as well as the capacity of the Town to produce the request without an extension, the Town’s efforts in responding to the request, and that the request is part of a series of requests from the same requestor, 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

Mallory Aronstein SPR22/0694 Page 3 March 28, 2022 (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). 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).

Mallory Aronstein SPR22/0694 Page 4 March 28, 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 March 23rd petition, the Town stated: The scope of the request is unlimited as to subject matter, and therefore potentially implicates exemptions (a), (c), (d), (h), (i), (o), and (p) of the Public Records Law, as well as the attorney-client and attorney work product privileges. Great care therefore must be taken in ensuring against the inadvertent disclosure of information and documentation that could harm the Town’s policy-making and legal interests. Potentially thousands of written communications will need to be individually reviewed, segregated, and/or redacted. Although the Town stated that the responsive communications implicate various statutory and common law exemptions, it has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information pursuant to Exemptions (c), (d), (h), (i), (o), (p). The Town must clarify these issues. Please be advised, the Town does not need to petition this Division to assess fees related to Exemption (a) and the attorney-client and attorney work product privileges. Fee in Excess of $25.00 per hour In its petition, the Town also stated: [The Town] hereby petitions…to charge for [the] search, segregation, and redaction of these records at an hourly rate of $71.84 being [the Town administrator’s] salary-equivalent hourly rate. The nature of the requested records requires a detailed review of all of [the Town administrator’s] own emails and texts…as well as all of the emails and texts of the Selectmen, across an almost four-month span. For various privilege and confidentiality reasons, as well as concerns relating to the supervisor-employee relationship, [the Town] cannot allow any administrative staff to conduct a blanket review and search of…texts and emails [of the Town administrator and] of the Selectmen. Similarly, much of the documentation requested would need to be segregated and redacted by [the Town administrator] in order to preserve those privileges. 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 $71.84 per -- hour.

Mallory Aronstein SPR22/0694 Page 5 March 28, 2022 Request for Relief In its petition, the Town stated: Finally, it is obvious that this request is solely designed to harass my office, and is effectively frivolous. The requestor…has not even bothered to provide a particular topic or subject of inquiry that could potentially narrow the scope of the search … In particular, this request comes a mere month after the same requestor made another broad records request of the Selectmen’s Office…As of today’s date, the requestor has not paid any of the approved fees that would result in the initiation of the search, segregation, and redaction process. Based on the information provided in the Town’s petition, I find that the Town 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 30 business days as described above. Additionally, the Town does not require permission to assess a fee for segregation and redaction required by law and may assess a fee limited to $71.84 per hour. Please note, Mr. Higgins 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, ~ .f)A - ... _ ,· I - . , ~' . - , . Rebecca S. Murray Supervisor of Records cc: Patrick Higgins