Jeff Raymond v. Danvers, Town of - Town Clerk (SPR 20230794)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 28, 2023 SPR23/0794 Catherine S. Ellsworth Town Clerk Town of Danvers One Sylvan Street Danvers, MA 01923 Dear Ms. Ellsworth: On April 24, 2023, this office received the petition of Attorney Cavanaugh on behalf of the Town of Danvers (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(d)(iv). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On April 9, 2023, Jeff Raymond requested various documents regarding the “municipality’s police department and its compliance with Massachusetts Peace Officer Standards and Training (POST) Commission’s duties under Chapter 253 of the Acts of 2020…” 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. 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

Brett R. Cavanaugh, Esq. SPR23/0794 Page 2 April 28, 2023 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). Extension of Time to Produce Responsive Records In its April 24, 2023 petition, the Town asserts, “[p]ursuant to M.G.L. c. 66, § 10(c), the Town requests an additional 10 business days to respond to this request. The Town makes this request for additional time because the employee who will perform the search, segregation and redaction process has many other responsibilities, which he cannot ignore.” I find that in light of the capacity of the Town to produce the records without an extension, the Town has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). I hereby grant the Town an extension of 10 business days to furnish copies of records responsive to Mr. Raymond’s request. See G. L. c. 66, § 10(c). Petition 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

Brett R. Cavanaugh, Esq. SPR23/0794 Page 3 April 28, 2023 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. 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 An agency 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). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies 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. 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)(ii); 950 C.M.R. 32.06(4). Current Petition In its April 24, 2023 petition, the Town argues the following in support of its request to charge for segregation and redaction: The Town is in possession of approximately 150 pages of records that have been identified in response to requests #1, #2, #3, #5, and #6, in addition to two Excel spreadsheet records that may be responsive to request #4 that contain approximately 94 entries. All those records 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 involve subjects of dispute in active litigation, administrative hearings, or mediation and thus should be withheld. Additionally, potential exemptions to the Public Records Law involving these records may include Exemptions C and F… Additionally, Exemption F, the investigatory exemption, may also be applicable, because some of these records involve ongoing investigations, and the disclosure of such records could compromise the Town’s investigative efforts.

Brett R. Cavanaugh, Esq. SPR23/0794 Page 4 April 28, 2023 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. Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Town is permitted to charge for time spent segregating and redacting the requested records. With respect to time, I find the Town has established good cause for a time extension of 10 business days as described above. See G. L. c. 66, § 10(d)(iv). I encourage the parties to communicate further to enable the Town to provide records in an efficient and affordable manner. 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: Jeff Raymond Brett R. Cavanaugh, Esq.