Robert Helminen v. Assabet Valley Collaborative (SPR 20230365)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 1, 2023 SPR23/0365 Kevin S. Freytag, Esq. Murphy, Hesse, Toomey & Lehane, LLP 50 Braintree Hill Office Park, Suite 410 Braintree, MA 02184 Dear Attorney Freytag: On February 22, 2023, this office received your petition on behalf of the Assabet Valley Collaborative (Collaborative) seeking an extension of time to produce records and requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Collaborative furnished a copy of this petition to the requestor, Robert Helminen. G. L. c. 66, § 10(d)(iv). On February 7, 2023, Mr. Helminen requested numerous records regarding an identified project. 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; (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). 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

Kevin S. Freytag, Esq. SPR23/0365 Page 2 March 1, 2023 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 February 22nd petition, the Collaborative states, “Assabet requests an additional 20 business days to respond to this request. Assabet makes this request for additional time because the employee who will perform the search, segregation and redaction process has many other responsibilities, which she cannot ignore.” In light of the capacity of the Collaborative to produce the records without an extension, the Collaborative has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Collaborative an extension of 20 business days to furnish copies of records responsive to Mr. Helminen’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 (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.

Kevin S. Freytag, Esq. SPR23/0365 Page 3 March 1, 2023 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 receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In its February 22nd petition, the Collaborative states: Assabet is in possession of approximately 2,598 emails that may be responsive to the request. Those emails will need to be reviewed to determine if they are actually responsive, and whether any redactions are appropriate and justified under the Public Records Law. The records in this case concern the renovations of a building owned by Assabet and include communications with my firm regarding the project. Potential exemptions in these records might include Exemption (c) Privacy (e.g., personal email or phone numbers); Exemption (n) Security of [sic] Safety of Persons or Buildings; and the attorney-client privilege. I find the Collaborative has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv).

Kevin S. Freytag, Esq. SPR23/0365 Page 4 March 1, 2023 Conclusion I find the Collaborative has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). This office encourages Mr. Helminen and the Collaborative to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii). Additionally, the Collaborative is granted an extension of 20 business days to furnish copies of records responsive to Mr. Helminen’s request. See G. L. c. 66, § 10(c). 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: Robert Helminen