Jeremy Margolis v. Brookline, Town of - Town Counsel (SPR 20230245)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 23, 2023 SPR23/0245 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 Appeals This request was the subject of previous appeals. See SPR22/2457 Determination of the Supervisor of Records (November 9, 2022) and SPR22/2695 Determination of the Supervisor of Records (December 6, 2022). In my December 6th determination, I ordered the Town to provide Mr. Margolis with a response to his request. On January 24, 2023, the Town responded. Unsatisfied with the Town’s response, Mr. Margolis petitioned this office and this appeal, SPR23/0245, was opened as a result. 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 SPR23/0245 Page 2 February 23, 2023 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 January 24th Response In its January 25, 2023 response, the Town states: In view of the extensive range of data, information, and records the searches produced, Town staff would have to consider carefully the sensitive nature of information and records the searches produced. Town staff would have to review meticulously and identify the information within the portions of responsive records that fall within the pertinent exemptions of the PRL. The most relevant exemption would be exemption (c), the privacy exemption…. [T]he segregation and redaction would be necessary and required by the PRL as the identity of victims of sexual harassment would be exempt from public disclosure by exemption (c)… Thus, we estimate that we will spend at least one hour searching for and compiling the potentially responsive records, at least 23 hours segregating the actually responsive records from the potentially responsive records, and at least 46 hours reviewing, redacting, and reproducing the requested records. In regard to the timeliness issue, the Town asserts: On October 7, 2022, the requester replied via email to Town Counsel’s October 5, 2022 response. Within his arguments, rebuttals, and disagreements with Town Counsel, the requester apparently made another modified request. We later understood this PRR to be his second modified request for a particular records request. This modified request was not sent through the Town’s portal, as the requester had done before. Nor did he separate the request into a separate email by itself, which he has also done before.

Kerry Fleming SPR23/0245 Page 3 February 23, 2023 In this 430-word email on October 7, the requester included a little over one hundred words modifying his earlier request for a second time. The other three hundred words of this email included assumptions he was making, erroneous conclusions he had reached, threats to appeal to your office, and promises to continue “to renew this request on a daily basis[]”…. On November 1, 2022, the Town received notice of the requester’s appeal to the Supervisor’s Office that he had not received a response from the Town to his second modification of this PRR that he had buried in an email, unlike his previous practice. As the Town realized the oversight, the Town responded timely on November 9, 2022, which was within six business days. Current Appeal In his appeal, Mr. Margolis asserts that the Town’s response “fails to demonstrate that a response was provided within 10 business days of receipt of my October 7, 2022 request, in violation of G. L. c. 66, § 10(e).” Further, Mr. Margolis argues that the Town’s response “fails to clarify ‘why the Town is assessing a fee for the first two hours of employee time.’” Additionally, Mr. Margolis contends that the Town’s response “fails to demonstrate that it is required by law to segregate and redact the records at issue.” Based upon the Town’s January 24th response, it appears the Town intends to assess a fee for segregation and redaction 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). Where the Town has not submitted a petition under G. L. c. 66, § 10(d)(iv), the Town may not assess a fee for segregation and redaction under Exemption (c). 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).” Where Mr. Margolis submitted a modified public records request on October 7, 2022, and the Town provided a response on November 9, 2022, I find the Town has not demonstrated that it responded to the modified request within 10 business days. As such, the Town may not assess a fee for responding to this request.

Kerry Fleming SPR23/0245 Page 4 February 23, 2023 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