Jeremy Margolis v. Brookline, Town of - Town Clerk (SPR 20231667)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 2, 2023 SPR23/1667 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 named 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 SPR23/1667 Page 2 August 2, 2023 Executive Research Forum that include [identified names]. Previous Appeals These requests were the subject of previous appeals. See SPR23/0535 Determination of the Supervisor of Records (April 4, 2023) and SPR23/1306 Determination of the Supervisor of Records (June 30, 2023). In my June 30th 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 July 17, 2023, the Town responded. Unsatisfied with the Town’s response, Mr. Margolis petitioned this office and this appeal, SPR23/1667, was opened as a result. While this appeal was pending, the Town submitted a fee petition regarding these requests, which has been opened as SPR23/1785. 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 July 17th Response In its July 17, 2023 response, the Town states: [T]he fee estimate we provided in our March 17 response was “at least $172.50.” In our June 13 response, we explained why that fee estimate was warranted. We also wrote that if our argument was not persuasive, our revised fee estimate would “then be at least $122.50.”

Kerry Fleming SPR23/1667 Page 3 August 2, 2023 If your June 30 determination means we must revise our fee estimate for a second time, then for the reasons stated in the Town’s March 17 and June 13 responses, our fee estimate would then be at least $120.00. Of course, if the actual cost to produce the records is less, we would reimburse the requester the difference. If the actual cost to produce the records is more, we will bill the requester the difference and produce the records once the requestor has paid the full fee. See Chawla v. Dep’t of Revenue, dkt no. 1784CV02087, Order, at 3, dated January 23, 2019 (the public agency “shall not be required to produce any of the requested documents unless and until the Plaintiff shall have first pre-paid a reasonable fee to compensate them for the time expended in connection with such production.”); Mackin v. Deree, dkt. no. 1882CV01611, Order, at 2, dated May 16, 2019 (“The Town has the authority to charge a reasonable sum for the production of the documents, See 950 CMR 32.07.“); Id. at 3 (“the Court orders that should [the requester] desire the documents he has requested in his FOIA requests at issue, that he pay to the [public agency] the estimated fee.”). Finally, as in Chawla and Mackin, the Town of Brookline does not waive the argument that these requests are not proper under the Public Records Law. We are only providing this fee estimate assuming the requests are proper, but we do not concede the point. Although the Town provides a fee estimate of at least $120.00 in its July 17, 2023 response, it is unclear how many hours each task, such as locating the records, compiling the records, and reproducing the records will take. 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). Please be advised that on July 27, 2023, the Town submitted a petition to assess fees for segregation and redaction and permission to assess a fee in excess of $25. See G. L. c. 66, § 10(d)(iv); 950 C.M.R. 32.06(4)(g). This petition is currently opened as SPR23/1785. 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 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).

Kerry Fleming SPR23/1667 Page 4 August 2, 2023 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). Waiver of fees In his petition, Mr. Margolis “request[s] that [this office] order the [Town] to provide the requested records at no cost.” Mr. Margolis is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. 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