Jeremy Margolis v. Brookline, Town of (SPR 20231306)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 30, 2023 SPR23/1306 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 SPR23/1306 Page 2 June 30, 2023 Executive Research Forum that include [identified names]. Previous Appeal These requests were the subject of a previous appeal. See SPR23/0535 Determination of the Supervisor of Records (April 4, 2023). In my April 4th determination, I ordered the Town to provide Mr. Margolis with a response to his requests. In the determination, I asked that the Town either 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). On June 13, 2023, the Town responded. Unsatisfied with the Town’s response, Mr. Margolis petitioned this office and this appeal, SPR23/1306, 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 June 13th Response In its June 13, 2023 response, the Town states: In the Office’s April 4 determination, however, your Office wrote that the Town must clarify “why the Town is assessing a fee for the first two hours of employee time in responding to Mr. Margolis’s requests…I would begin a response by pointing out in the Town’s March 17, 2023 response, “Town staff has already expended 2.5 hours of searching for responsive documents….” [W]e actually perform some of the work that would be necessary in producing any responsive documents.

Kerry Fleming SPR23/1306 Page 3 June 30, 2023 In this case, and in numerous previous requests by the requestor, we performed the search that would be necessary to respond. This effort in searching for the responsive documents takes time to perform—in this case in response to these three requests, more than 2.5 hours…. Since many of his requests, and these repetitive requests in particular, are part of a series of requests from the same requestor, the Town, like the Office, considered these three March 3 requests as an effort to make multiple public records requests “solely to avoid payment of fees.” SPR23/0535, at 4. Where the Office combined the three March 3 requests into one request, the Town is also considering the previous repetitive requests of October 5, 2022, October 7, 2022, October 11, 2022, October 13, 2022, October 18, 2022, and October 25, 2022, never mind the subsequent March 31, 2023 request. In each of these earlier, and other requests, Town staff has spent more than a dozen hours providing good faith estimates for the requester to never pay and frequently appeal. Even if these arguments [d]o not persuade the Office, then the Town’s March 17 good faith estimate would be merely reduced by two hours and then be at least $122.50, which is 6.9 hours minus 2 hours times $25 per hour. Current Appeal In his appeal, Mr. Margolis argues: [1] The town counsel may not charge for time spent segregating and redacting records unless it is required by law to do so. The town counsel provided no basis for charging for segregation and redaction time in his June 13, 2023 response… [2] The town counsel’s explanation for why he is charging for the first two hours of employee time is both inaccurate and not germane…. [3] The town counsel has failed to “use its knowledge of the records to facilitate providing any responsive records.” The Town continues to assert 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 continues to be unclear why

Kerry Fleming SPR23/1306 Page 4 June 30, 2023 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 continue to 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). 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