Jeremy Margolis v. Brookline, Town of - Town Counsel (SPR 20222695)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 6, 2022 SPR22/2695 Kerry Fleming Records Access Officer Town of Brookline 333 Washington Street, 6th Floor Brookline, MA 02445 Dear Ms. Fleming: I have received the petition of Jeremy Margolis appealing the response of the Town of Brookline (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 7, 2022, Mr. Margolis requested: [1] All emails (and their attachments) sent by [named Brookline employees] to employees of [a named company] from July 15, 2022 to October 7, 2022[;] [2] All emails (and their attachments) received by [named Brookline employees] that were sent by employees of [a named company] from July 15, 2022 to October 7, 2022. Previous Appeal This request was the subject of a previous appeal. See SPR22/2457 Determination of the Supervisor of Records (November 9, 2022). In my November 9th determination, I ordered the Town to provide Mr. Margolis with a response to his request. On November 9, 2022, the Town responded. Unsatisfied with the Town’s response, Mr. Margolis petitioned this office and this appeal, SPR22/2695, was opened as a result. The Town provided a supplemental response dated December 2, 2022 to Mr. Margolis and this office after this appeal was opened. 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). 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

Kerry Fleming SPR22/2695 Page 2 December 6, 2022 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). The Town’s November 9th Response In its November 9, 2022 response, the Town provides a fee estimate of $1,760.76. The Town states: In view of the series of public records requests that you have submitted to the Town of Brookline via Foia Direct and by emailing Town Counsel’s Office directly, this particular request was inadvertently overlooked as pending your response to a fee estimate….Nevertheless, the oversight has since been remedied with our IT Department conducting a search for responsive records…. The Town does not have an employee with such necessary skill who is paid less than $25.00 per hour. Consistent with the PRL, the first two (2) hours of personnel work are free of charge. However, in your case, the Town staff, in response to your several requests, have already spent on your requests more than the two free hours you are entitled under the PRL…. IT staff ran an email search and found a total of 179 megabytes of information including attachments. In our experience, a page is usually 66 kilobytes per page. Thus, we estimate that the responsive documents may be as many as 2,777 pages of potentially responsive documents. Further review of potentially responsive records will be required to determine: (1) whether the records contain information which may be exempt from public records disclosure or otherwise protected; (2) whether the records contain confidential and privileged attorney-client communication; and (3) to the extent any other information is exempt from public disclosure, then whether the information must be redacted. Examples of information that may be exempt from disclosure may include personal identifying information of the complaining witnesses in emails to/from employees of CIC. In these cases, the portions of the emails may be exempt from

Kerry Fleming SPR22/2695 Page 3 December 6, 2022 public disclosure and require redactions…. We estimate a Town employee will be able to review and segregate responsive and non-privileged documents at a rate of 240 pages per hour. Another Town employee, an attorney, would also need to review and segregate the confidential or privileged documents. Town attorneys are usually able to review and segregate documents for privilege or confidentiality at a rate of 80 pages per hour. IT staff told us it took them at least one hour to search for the responsive documents. We estimate that Town staff would need at least 69.40 hours of time to review and segregate the documents for responsiveness and segregation. (2777/240 + 2777/80=11.60 + 34.70= ~46.3) In our experience, Town staff takes about half as much time to redact as they take to review and segregate. Thus, the Town’s good faith estimate of employee work time assuming production will be made electronically and delivered by email, is as follows: TASK - HOURS Search At least 1.0 Review At least 46.3 Segregate: At least 23.1 Total: At least 70.40 Accordingly, at a rate of $25 per hour, the total estimated fee for email delivery of responsive records would be at least $1,760.76, which is 70.40 hours times $25 per hour. Current Appeal In his appeal, Mr. Margolis asserts: [1] The town may not charge a fee if the RAO failed to respond to the requester within 10 business days. (See G. L. c. 66 § 10(e).) In this case, the request was made on October 7, 2022, no response was received within 10 business days despite follow-ups via email and phone, and the fee estimate at issue was only received on November 9, 2022, following an appeal submitted to your office due to the Office of the Town Counsel’s nonresponse. [2] The town may not deprive me of the two free hours allotted to a requester simply because I have made other requests. In other words, these free hours are not a lifetime allotment but rather an allotment per request. (See G. L. c. 66 § 10(d).) [3] The town may not charge for segregation and redaction time unless it is required by law to do so. (See “A Guide to Massachusetts Public Records Law” at

Kerry Fleming SPR22/2695 Page 4 December 6, 2022 10.) The records at issue-communications between employees of a town counsel’s office and employees of an investigations firm retained by the town—do not fall into any of the categories of information governed by statutes that indicate that certain records are not public records….The records at issue also do not fall under attorney-client privilege because the Office of Town Counsel and [the named company] did not have an attorney-client relationship. The Town’s Supplemental December 2nd Response In the Town’s supplemental December 2, 2022 response, the Town argues: The Town’s November 9 response, prompted by the requester’s previous appeal, SPR22-2457, acknowledged the inadvertent oversight in responding to Mr. Margolis’s second modification of his initial PRL request. He made his second modification of his request buried within his reply to me, which also contained a series of rebuttals pertaining to several of his other records requests. While we previously acknowledged that Mr. Margolis contacted the office to question his request, the Town’s IT system misdirected his email as spam resulting in the further delayed response. Supervisor staff should note that Mr. Margolis made another records request on the same day, but he elected to submit that PRL request, along with the majority of his other eleven records requests, through FOIA Direct, our online tracking website that helps the Town timely respond to PRL requests. Thus, it should be readily apparent that the Town’s oversight was inadvertent, not an example of obstinance, and reasonable under the circumstances…. [O]nce we discovered the oversight of responding to his third email on the topic, we promptly asked the Town’s IT staff to run a search for responsive records to this repeatedly modified request. As such, given the volume of records the search by IT staff produced, we sent to Mr. Margolis a fee estimate. Based upon the Town’s November 9th and December 2nd responses, it is unclear why the Town is assessing a fee of $1,760.76. The Town must provide further information on the details regarding the tasks involved, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. For example, it is unclear if the Town is reviewing the documents to redact the records pursuant to certain exemptions. Under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). Further, 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). It is unclear why the Town is assessing a fee for the first two hours of employee time in responding to Mr. Margolis’s request.

Kerry Fleming SPR22/2695 Page 5 December 6, 2022 The Town must clarify this. G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Margolis submitted a public records request on October 7, 2022, and the Town provided a response on November 9, 2022, I find it is unclear whether the Town complied with G. L. c. 66, § 10(e). Specifically, the Town must demonstrate whether it provided a response to Mr. Margolis’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. Waiver of fees In his petition, Mr. Margolis contends “as a freelance journalist, I do not have the ability to pay these fees.” Mr. Margolis is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. This office encourages Mr. Margolis and the Town to communicate in order to facilitate producing records efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Mr. Margolis with a response to his request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Margolis may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeremy Margolis