Helen Litsas v. Norwood, Town of (SPR 20230525)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 21, 2023 SPR23/0525 David A. DeLuca, Esq. Town Counsel Murphy, Hesse, Toomey & Lehane, LLP 50 Braintree Hill Office Park, Fourth Floor Braintree, MA 02184 Dear Attorney DeLuca: On March 17, 2023, this office received your petition on behalf of the Town of Norwood (Town) seeking an extension of time to produce records and requesting permission to charge for time spent segregating and redacting responsive records under G. L. 66, § 10(d)(iv). G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On March 8, 2023, Helen Litsas requested numerous records including correspondences and emails between identified individuals, job postings regarding an identified position, complaints alleging discriminatory and/or retaliatory conduct against named individuals, COVID-19 related policies, policies relating to complaints of discrimination and retaliation, a list of employees for the Town and their ethnicity, age, and gender identity, and payroll records relating to a named individual. 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; 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

David A. DeLuca, Esq. SPR23/0525 Page 2 March 21, 2023 (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 the Town’s March 17th petition, the Town states: Given the voluminous nature of the request and the extensive amount of time it will take for the Town to respond to the request, the Town respectfully…requests an additional 30 business days to respond to this request, under G.L. c. 66, §, Section 10(c), beyond the initial twenty-five (25) business days being taken in accordance with M.G.L. c. 66, Section 10(b)(vi). I find that in light of the capacity to produce the request without the extension, 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. Litsas’ request. See G. L. c. 66, § 10(c). Petition to Assess Fees – Municipalities The Supervisor of Records (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).

David A. DeLuca, Esq. SPR23/0525 Page 3 March 21, 2023 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. 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 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 segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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 17th petition, the Town states the following: The records sought likely contain information protected from public disclosure under [Exemptions (a), (b), (c), and (f)] as well as the attorney-client privilege, and other applicable privileges…. Any policies responsive to the request that relate solely to the internal personnel rules and practices of the public body shall be withheld….

David A. DeLuca, Esq. SPR23/0525 Page 4 March 21, 2023 Any personnel and/or information that may constitute an unwarranted invasion of personal privacy found in records responsive to the request shall be redacted. For example, sensitive information such as social security numbers shall be redacted from any payroll records of an employee produced in response to this request. Moreover, materials used as part of any investigation into discrimination complaints (rather than records related to a law enforcement misconduct investigation) would not only likely qualify as personnel information under Exemption (c), the disclosure of such information could constitute an unwarranted invasion of personal privacy. Such records, if any, shall be withheld and/or redacted accordingly…. Information gathered as part of any investigation into discrimination complaints that would likely prejudice the possibility of effective law enforcement if disclosed, shall be withheld and/or redacted accordingly. In light of the Town’s petition, I find the Town 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). To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for the segregation and redaction of such exempt material. This office encourages Ms. Litsas and the Town to continue to communicate to facilitate providing records more 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 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 Ms. Litsas’ request. See G. L. c. 66, § 10(c). Additionally, I find the Town 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). To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for the segregation and redaction of such exempt material. Please note, Ms. Litsas 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),10A(c).

David A. DeLuca, Esq. SPR23/0525 Page 5 March 21, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Helen Litsas