Richard J. Silvio v. Dracut, Town of (SPR 20230995)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 18, 2023 SPR23/0995 Brett R. Cavanaugh, Esq. Town Counsel Town of Dracut Murphy, Hesse, Toomey & Lehane, LLP 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Cavanaugh: On May 12, 2023, this office received your petition on behalf of the Town of Dracut (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, it is my understanding that the Town furnished a copy of this petition to the requestor. Id. On May 11, 2023, Richard J. Silvio requested “any emails containing [a named individual] dated 3/10/23 to 4/20/23.” Previous Petition The subject matter of the request and this petition are similar to those addressed in SPR23/0960 Determination of the Supervisor of Records (May 16, 2023). In my May 16th determination, I found it unnecessary to opine on the Town’s time and fee petition because Mr. Silvio modified the scope of his request. Subsequent to the modification, the Town submitted the current petition. 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; 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. SPR23/0995 Page 2 May 18, 2023 (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). 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 May 12th petition, the Town seeks “an additional twenty (20) 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 she cannot ignore.” In addition, the Towns states “that it will take approximately 63.3 hours (i.e. 1 minute per email) to search for (i.e. review more than 3,800 emails that have been gathered to determine if they are responsive to the request), segregate and potentially redact more than 3,800 emails that have been identified.” I find that in light of the need to search for, collect, segregate and examine the records, and the capacity of the Town 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 20 business days to furnish copies of records responsive to Mr. Silvio’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

Brett R. Cavanaugh, Esq. SPR23/0995 Page 3 May 18, 2023 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). 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 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 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 May 12th petition, the Town “requests that it be permitted to charge $25 per hour to search for, segregate and potentially redact records that are responsive to the request.” The Town

Brett R. Cavanaugh, Esq. SPR23/0995 Page 4 May 18, 2023 indicates that it possesses “more than 3,800 emails that may be responsive to the request.” The Town further states, “[t]hose emails will need to be reviewed to determine if they are actually responsive records, and whether any redactions are appropriate and justified under the Public Records Law. A potential exemption in these records might include, but not be limited to, Exemption (c) Privacy (e.g., personal email addresses or phone numbers).” 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). Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Town is permitted an extension of 20 business days to furnish copies of records responsive to Mr. Silvio’s request. Further, the Town is permitted to charge for time spent segregating and redacting the requested records. I encourage the parties to communicate further to enable the Town to provide records in an efficient and affordable manner. Please note that Mr. Silvio 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: Richard J. Silvio