Jeremy Margolis v. Brookline, Town of - Town Counsel (SPR 20222696)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 6, 2022 SPR22/2696 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 14, 2022, Mr. Margolis requested: [1] All emails (and their attachments) from [a named individual] to any of [four named individuals] related to the police chief search sent between October 1, 2021 and May 1, 2022[;] [2] All emails (and their attachments) to [a named individual] from any of [four named individuals] related to this police chief search sent between October 1, 2021 and May 1, 2022[;] [3] All invoices that the town of Brookline received from [a named company] between July 15, 2022 and present; [4] All invoices that the town of Brookline paid to [a named company] between July 15, 2022 and present; [5] All invoices that the town of Brookline received from [a named organization] between January 1, 2021 and present; [6] All invoices that the town of Brookline paid to [a named organization] between January 1, 2021 and present[.] On November 1, 2022, the Town responded. Unsatisfied with the Town’s response, Mr. Margolis petitioned this office and this appeal, SPR22/2696, 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. 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 SPR22/2696 Page 2 December 6, 2022 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). 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 1st Response In its November 1, 2022 response, the Town provides a fee estimate of $712.50. The Town states: 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 100 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 1,550 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.

Kerry Fleming SPR22/2696 Page 3 December 6, 2022 Examples of information that may be not responsive or exempt from disclosure may include information in emails to/from the Town Administrator [a named individual] to/from the named Select Board members relative to Town policy issues/procedural matters in which cases the emails are not responsive as public information and would not be responsive to this request. An additional example would be, emails that include communications regarding the candidates that may identify personal or otherwise privileged information about the individual candidates, in which case the emails may be exempt from public disclosure…. 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 privileged documents. Town attorneys are usually able to review and segregate documents for privilege or confidentiality at a rate of 80 pages per hour. We estimate that Town staff would need at least 26.00 hours of time to review and segregate the documents for responsiveness and segregation. (1550/240 + 1550/80=6.45 + 19.375= ~26) 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 required to respond to your request, assuming production will be made electronically and delivered by email, is as follows: TASK - HOURS Search At least 2.675 Segregation At least 6.45 Redaction At least 19.375 Total: At least 28.50 Accordingly, at a rate of $25 per hour, the total estimated fee for email delivery of responsive records would be at least $712.50, which is 28.50 hours times $25 per hour. My apologies for underestimating the fee estimate that was sent to you earlier through FOIA direct. That estimate neglected to include the time for IT staff to search for the records. 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

Kerry Fleming SPR22/2696 Page 4 December 6, 2022 made on October 14, 2022, and no response was received until November 1, 2022, 12 business days after the request. [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 10.) None of [the] records at issue-communications between the town clerk and members of an ad-hoc committee of town residents, and invoices received from and paid to executive search and investigations firms retained by the town—fall into any of the categories of information governed by statutes that indicate that certain records are not public records….They also do not fall under attorney-client privilege, as explained in fn.2. The Town’s Supplemental December 2nd Response In the Town’s supplemental December 2, 2022 response, the Town argues: The Town received Mr. Margolis’s request through the Town’s FOIA Direct website on Friday, October 14, 2022 at 4:59pm. The office hours for the Town’s RAO, the Town Clerk and Town Hall itself, close at 12:30pm on Fridays. Therefore, under the PRL, the Town “received” his request the next business day, Monday, October 17, 2022. Therefore, the deadline to respond under the PRL was Wednesday, October 31, 2022. On that date, Town staff provided a fee estimate to Mr. Margolis through FOIA Direct, which was the manner in which he made his request. The requester did not provide you this email in his appeal. Mr. Margolis acknowledged receipt of the fee estimate we provided to him, and he requested further clarification of the associated cost in his November 1, 2022 email response to the Town…. Although Mr. Margolis may disagree, Town staff produced the fee estimate within the deadline provided by the PRL…. Town staff would need to conduct further review to determine: (i) whether the potentially responsive records actually contain information that is responsive to the requester’s actual request as opposed to, for example, merely emails between the Town Administrator and a member of the Select Board, two of the identified Town officials, but on a topic that was not responsive to the actual request, “related to the police chief search,” but about approvals of construction change orders that the Select Board frequently approve each meeting; (ii) whether the records contain information which may be exempt from public records disclosure

Kerry Fleming SPR22/2696 Page 5 December 6, 2022 or otherwise protected, for example, such as information about applicants who were not finalists in the “police chief search,” which would be protected from disclosure by exemption (c), “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’”; and (iii) to the extent any other information is exempt from public disclosure, then whether the information must be redacted. Based upon the Town’s November 1st and December 2nd responses, it is unclear why the Town is assessing a fee of $712.50. 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. It appears the Town is assessing a fee for redacting records pursuant to Exemption (c). Please be advised, 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. 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).” Mr. Margolis in a subsequent response dated December 4, 2022 argues: [The Office] claims the fee estimate the town sent through FOIA Direct on October 31, 2022 should be considered a valid response within 10 business days. In making this claim, [the Office] again leaves out relevant details: [1] The fee estimate…is not a valid response. It does not contain any of the required elements of a valid response as laid out in G. L. c. 66, § 10(b)(i)-(ix). Rather, it is a form-generated email through FOIA Direct that contains only the “estimate personnel cost.” The town counsel’s office was clearly aware this did not suffice as a response to my request because it sent a valid response…the following day. [2] The fee estimate was sent at 5:09 p.m. on October, 31, 2022, after the end of the business day according to the town clerk’s website. Therefore, under [the Office’s] logic, it was not sent until the subsequent business day. Where Mr. Margolis submitted a public records request on October 14, 2022, and the Town provided a response on October 31, 2022, and subsequently on November 1, 2022, I find

Kerry Fleming SPR22/2696 Page 6 December 6, 2022 the Town may properly assess a fee for the production of the responsive records. 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 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