Harold Rhodes v. Milford, Town of - Town Administrator (SPR 20222925)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 28, 2022 SPR22/2925 Richard A. Villani Town Administrator Town of Milford 52 Main Street Milford, MA 01757 Dear Mr. Villani: I have received your petition on behalf of the Town of Milford (Town) seeking an extension of time to produce records and also requesting permission to charge for time spent segregating or redacting responsive records, as well as a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On December 12, 2022, Harold S. Rhodes requested: [A]ll emails, since January 1, 2022, that include my name, in any written form, written by, or in the possession of, any Town Employee, any Special Municipal Town Employee, any person who provides contractual services, or any other person who falls directly and indirectly within your jurisdiction or supervision (except for any emails to or from [three named individuals] that directly concern the pending litigation). 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; 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

Richard A. Villani SPR22/2925 Page 2 December 28, 2022 (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. 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). Current Petition In its December 20th petition, the Town states: This request will require significant personnel time from the IT Director who is the only employee who is qualified to research and copy potentially thousands of emails that “includes [an identified name], in any form, written by or in the possession of any Town employee, any Special Municipal Employee, any person who provides contractual services, or any other person...” This could involve researching emails for potentially as many as 656 or more Town Employees. Attached is a Memo from the IT Director indicating the number of hours estimated to research the request. Included with the petition was a letter from Christopher George, the Town’s IT Director to Mr. Villani, dated December 20, 2022, stating that “[a]t a minimum, it will take the IT Director a month or more to complete this task as there is no way to provide an uninterrupted schedule. If this request involves other non-General active and inactive Government employees, this will significantly increase the estimated completion times.” I find the Town has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Town an extension of 30 business days to furnish copies of records responsive to Mr. Rhodes’s request. See 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

Richard A. Villani SPR22/2925 Page 3 December 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 an agency’s petition to allow the agency 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 agency 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after

Richard A. Villani SPR22/2925 Page 4 December 28, 2022 receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In its December 20th petition, the Town states: This request will require significant personnel time from the IT Director who is the only employee who is qualified to research and copy potentially thousands of emails that “includes [an identified name], in any form, written by or in the possession of any Town employee, any Special Municipal Employee, any person who provides contractual services, or any other person...” This could involve researching emails for potentially as many as 656 or more Town Employees. . . . In addition, the emails will need to be reviewed by the Town Administrator as many of the requested emails will likely be subject to Attorney Client Privilege or may require portions to be redacted pursuant to State Law. The need to redact and/or segregate is clearly necessary given the fact that Mr. Rhodes is presently the Plaintiff in a lawsuit filed against the Town of Milford and members of the Select Board. In addition, in his Public Records Request Mr. Rhodes specifically excludes “any emails to or from [three named individuals] that directly concern the pending litigation.” These three individuals are the current members of the Select Board and are named as defendants in their official capacity as members of the Select Board in the Complaint. Conclusion I find the Town has not met its burden to explain how 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 has not demonstrated why it must charge $75.86 per hour for I.T. work performed by the I.T. Director or $82.19 per hour for review of the responsive records by the Town Administrator. When preparing a fee estimate for the provision of the requested records, the Town is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary and how the redactions are required by law. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Town must provide a response to Mr. Rhodes within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Rhodes may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). The Town is granted an extension of 30 business days to furnish copies of records responsive to Mr. Rhodes’s request. See G. L. c. 66, § 10(c). This office encourages Mr. Rhodes and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii).

Richard A. Villani SPR22/2925 Page 5 December 28, 2022 Please note, the requestor 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), l0A(c). Sincerely, Manza Arthur Supervisor of Records cc: Harold S. Rhodes