Andrew Kerr v. Attleboro, City of - City Clerk (SPR 20230916)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 19, 2023 SPR23/0916 Kathleen Jackson City Clerk City of Attleboro 77 Park Street Attleboro, MA 02703 Dear Ms. Jackson: I have received the petition of Andrew Kerr appealing the response of the City of Attleboro (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 20, 2023, Mr. Kerr requested “an emailed copy of all text messages and email messages sent by any and all City Employees on City Funded Phones/Computers or Any Communications made on any Private Phone/Computer by any City Employee made on City Time and or While they were being paid and actively working for the city Between January 15th of 2022 through June 15th of 2022.” Previous Appeals This request was the subject of previous appeals. See SPR22/0704 Determination of the Supervisor of Records (April 11, 2023) and SPR23/0785 Determination of the Supervisor of Records (May 5, 2023). In my May 5th determination, I closed the appeal when I learned the City provided Mr. Kerr with a response dated May 3, 2023. Unsatisfied with the City’s response, Mr. Kerr petitioned this office and this appeal, SPR23/0916, was opened as a result. While this appeal was pending, the City provided a supplemental response dated May 12, 2023. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Kathleen Jackson SPR23/0916 Page 2 May 19, 2023 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City’s May 3rd Response In its May 3, 2023 response, the City states: We have received your appeal (SPR23/0785) of the City’s response (the “Written Response”) to your March 20, 2023 records request (the “Request”). Although, as described in the Written Response, the Request’s breadth, vagueness and ambiguity either require no response or mandate that the City reject it, we are reaching out to invite you to narrow or further clarify the records that you seek. For purposes of narrowing or clarifying your request, and to enable the City to respond thereto, we respectfully encourage that you indicate the subject matter(s) to which the desired records relate, and avoid the sort of wholesale, unlimited requests contained in the Request and your subsequent request transmitted on April 14, 2023, seeking any and all electronic communications over a protracted window that inherently would generate an exceedingly large volume of documents requiring undue time and resources, and substantial fees. The City’s May 12th Response In its May 12, 2023 supplemental response, the City states: [I]n its decision SPR23/0859, dated May 5, 2023 (the “Decision”), the Supervisor of Records allowed the City’s Fee Petition in this matter, directed the City to provide you with the instant response, and “encourage[d] [you] and the City to continue to communicate to facilitate providing records more efficiently and affordably.” See Decision, pp. 3-4. Accordingly, the City reiterates its May 3, 2023 invitation to contact us to narrow or clarify the records that you seek, and in addition provides the instant further response and advises as follows: [1] For the reasons described in its letter dated May 1, 2023 (the “May 1 Response”), and having received no further clarification from you to date, the Request remains unduly broad and vague, and lacks specificity sufficient to enable the City to identify and compile potentially responsive items, including without limitation insofar as it requests all electronic communications of various individuals exchanged over a six-month period, transmitted to or from any and all

Kathleen Jackson SPR23/0916 Page 3 May 19, 2023 privately and publicly owned communications devices. Because the Request omits a “reasonable description of the requested record(s)” under 950 CMR 32.06(1)(b), the City has no obligation to respond to it, see 950 CMR 32.06(f) (“calculation of time will commence only for requests that are made in accordance with 950 CMR 32.06(1”). Nor in any event, is the Request sufficiently specific to enable the City to determine or compile responsive records. [2] Nevertheless, to the extent that the City could be construed to be required to provide an estimate, and based on the Decision’s authorization to the City to impose additional fees, the City estimates a fee of $62,500 (i.e., 250 hours x $25 per hour, plus 750 hours x $75 per hour = $62,6500 [sic])…. Upon review, it appears that this City’s May 12th response refers to a fee petition that was addressed in SPR23/0859. See SPR23/0859 Determination of the Supervisor of Records (May 5, 2023). SPR23/0859 involved an April 14, 2023 request where Mr. Kerr requested, “any and all emails/text messages as well as any electronic communications from [six named individuals] [f]rom January 1st of 2022 until June 22nd of 2022.” In Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents; (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and

Kathleen Jackson SPR23/0916 Page 4 May 19, 2023 (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. This office encourages Mr. Kerr and the City to continue communicating 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 the records sought more efficiently and affordably). Conclusion If outstanding issues remain after Mr. Kerr and the City communicate further as described above, Mr. Kerr may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Andrew Kerr