Katherine Melville v. Chelmsford, Town of - Town Clerk (SPR 20230483)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 17, 2023 SPR23/0483 Patricia E. Dzuris Public Records Compliance Officer Town of Chelmsford 50 Billerica Road Chelmsford, MA 01824 Dear Ms. Dzuris: On March 10, 2023, this office received your petition on behalf of the Town of Chelmsford (Town) seeking an extension of time to produce records and 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, the Town furnished a copy of this petition to the requestor. Id. On February 28, 2023, Katherine Melville requested a named Town employee’s emails from the past two years. 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

Patricia E. Dzuris SPR23/0483 Page 2 March 17, 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 March 10 petition, the Town notes that “[a]n email was sent to the requestor on March 10 at 11:37 AM asking if she wished to revise the scope of her request by providing some keywords that would minimize the amount of time spent segregating and redacting the responsive documents.” The Town further states that, “[t]he initial investigation resulted in over 55,000 emails that need to be reviewed.” I find that in light of the capacity of the Town to search for, collect, segregate or examine records as well as the efforts undertaken by the Town in fulfilling the current request, 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 Ms. Melville’s request. See G. L. c. 66, § 10(c). To the extent possible, the Town must provide responsive records on a rolling basis. Petition to Assess Fees The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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 a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public 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 the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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

Patricia E. Dzuris SPR23/0483 Page 3 March 17, 2023 segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (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). Current Petition In its March 10th petition the Town “seeks the Supervisor’s permission to charge the requester for time spent segregating and redacting records that are responsive to the request.” In support of its request, the Town states, “[a] number of the responsive records will require redaction[s] of information that is ‘specifically or by necessary implication exempted from disclosure by [Exemption (a)]. The request cannot be prudently completed without redacting information under the applicable exemption and that the fee is not designed to limit, deter or prevent access to public records; rather, it is meant to protect the Town from inadvertently revealing sensitive material.” The Town is advised that permission from the Supervisor is not required to assess fees for segregation and redaction required by law under Exemption (a). Consequently, I find it is unnecessary to opine of this portion of the Town’s petition. Conclusion Accordingly, I find the Town has established good cause for a time extension of 30 business days as described above. I encourage the parties to communicate further to enable the Town to provide records in an efficient and affordable manner.

Patricia E. Dzuris SPR23/0483 Page 4 March 17, 2023 Please note, Ms. Melville 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: Katherine Melville