Jeremy Margolis v. Brookline, Town of - Town Counsel (SPR 20230535)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 4, 2023 SPR23/0535 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 requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 2, 2023, Mr. Margolis made three separate public records requests. In his first request, Mr. Margolis requested: [1] All emails (and their attachments) sent by [three names individuals] to any of [four named individuals] from January 1, 2023 to March 3, 2023[;] [2] All emails (and their attachments) received by [three named individuals] from any [of four named individuals] from January 1, 2023 to March 3, 2023. In his second request, Mr. Margolis requested: [1] All of the de-identified written exercises submitted to the 2023 Police Chief Screening panel as part of the hiring process for the chief of police[;] [2] The standardized rubric used to review the written exercises submitted to the 2023 Police Chief Screening Panel. In his third request, Mr. Margolis requested: [1] All 2021 and/or 2022 engagement, retainer, or scope of work agreements between the town of Brookline and the Police Executive Research Forum[;] [2] All emails (and their attachments) sent between September 1, 2021 and September 1, 2022, by [two named employees] to any employees of Police Executive Research Forum that include [identified names]. [3] All emails and their attachments) received between September 1, 2021 and September 1, 2022 by [two named individuals] from any employees of Police 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 SPR23/0535 Page 2 April 4, 2023 Executive Research Forum that include [identified names]. On March 17, 2023, the Town responded. Unsatisfied with the Town’s response, Mr. Margolis petitioned this office and this appeal, SPR23/0535, 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). 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 March 17th Response In its March 17, 2023 response, the Town provides a fee estimate of $172.50. The Town states: The Town does not have an employee with such necessary skill who is paid less than $25.00 per hour. These three requests include the same names, email addresses, and search criteria in at least two of three of your most recent records requests. However, the searches required to respond to these requests still required Town staff to run separate new searches…. A sample set in each of the searches revealed a duplication of results… [T]his good faith fee estimate is based upon the work Town staff already performed and that is required for the collective production of these numerous records. Based on the further projected staff time involved in searching for, reviewing, redacting, and scanning the records, we are providing herewith a cost estimate

Kerry Fleming SPR23/0535 Page 3 April 4, 2023 calculating said fee. We asked our Information Technology staff to search for documentation responsive to this request. They already performed this work…. The Town states that the records may be exempt from public disclosure pursuant to Exemptions (c) and (d). The Town further states: Based on the already expended and projected staff time involved in reviewing, redacting, and scanning the records, we are providing a good faith estimate calculating the expected fees. We estimate a Town employee will be able to review and segregate responsive and non-privileged documents at a rate of 240 pages per hour. Another Town employee, an attorney, would also need to review and segregate the confidential or privileged documents. Town attorneys are usually able to review and segregate documents at a rate of 80 pages per hour. The Town’s IT staff already ran the email searches. They found a total of 175 pages including attachments of potentially responsive documents. Town staff has already expended 2.5 hours of searching for responsive documents, and we are not yet sure we have all of them…. We estimate that Town staff would need at least 4.50 hours of time to review and segregate the documents for responsiveness and segregation for the documents we found. (175/240=0.7+175/80=2.2= ~2.9) In our experience, Town staff takes about half as much time to redact as they take to review and segregate. Thus, the Town’s good faith estimate of employee work time required to respond to your request, assuming production will be made electronically and delivered by email, is as follows: - TASK - HOURS Search At 2.5 least Segregation At 2.9 least Redaction At 1.5 least Total: At 6.9 least Accordingly, at a rate of $25 per hour, the total estimated fee for email delivery of responsive records would be at least $172.50, which is 6.9 hours times $25 per hour.

Kerry Fleming SPR23/0535 Page 4 April 4, 2023 Current Appeal In his appeal, Mr. Margolis asserts: [1] Here, I submitted three separate requests but received only one fee estimate. It seems I am being charged for the first two hours of employee time for each of my requests. [2] Moreover, because I received only one fee estimate for my three requests, it is unclear how much the town is charging for each one. The fee estimate must be itemized. G. L. c. 66, § 10(b)(viii). [3] The town counsel may only assess a fee for time spent segregating or redacting records if such segregation or redaction is required by law (or approved by your office under a petition). In this response, the town counsel claims that some of the records at issue may be protected by exemptions (c) and/or (d)….The town counsel has not cited any statutes that require him to segregate and redact the records at issue…. The Town states that it is assessing a fee for segregating and redacting records pursuant to Exemptions (c) and (d). 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). 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 requests. The Town must clarify this. I find that in light of the similarity of the subject matter of the requests, Mr. Margolis’ three requests submitted on March 2, 2023 may be combined for purposes of providing this fee estimate. A requestor may not divide a request into multiple parts in order to circumvent the fees allowed by the Public Records Law. See Idaho Code § 74-102(11) (a requestor may not file multiple requests for public records solely to avoid payment of fees). I encourage the parties to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the scope of the request. G. L. c. 66, § l0(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(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). For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d).

Kerry Fleming SPR23/0535 Page 5 April 4, 2023 Conclusion Accordingly, the Town is ordered to provide Mr. Margolis with a response to his requests 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