Jeremy Margolis v. Brookline, Town of - Town Clerk (SPR 20231907)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 31, 2023 SPR23/1907 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 SPR23/1907 Page 2 August 31, 2023 Executive Research Forum that include [identified names]. Previous Appeals and Petition These requests were the subject of previous appeals. See SPR23/0535 Determination of the Supervisor of Records (April 4, 2023), SPR23/1306 Determination of the Supervisor of Records (June 30, 2023), and SPR23/1667 Determination of the Supervisor of Records (August 2, 2023). In my August 2nd determination, I directed the Town to 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 August 16, 2023, the Town responded. Unsatisfied with the Town’s response, Mr. Margolis petitioned this office and this appeal, SPR23/1907, was opened as a result. These requests were also the subject of a previous petition. See 23/1785 Determination of the Supervisor of Records (August 4, 2023). In my August 4th determination, I found that in light of the fact that the Town had not demonstrated that it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records and a waiver of statutory limits on fees that may be assessed in responding to the requests could not be granted. 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 August 16th Response In its August 16, 2023 response, the Town states: Based on the already expended and projected staff time involved in searching for,

Kerry Fleming SPR23/1907 Page 3 August 31, 2023 locating, compiling, reviewing, redacting, and reproducing the records, we are providing a good faith estimate calculating the expected fees. We estimate a Town employee will be able to compile, review, and segregate responsive and non-privileged documents at a rate of 240 pages per hour. Another Town employee, an attorney, would also need to review and segregate the confidential or privileged documents. Town attorneys are usually able to review and segregate documents for privilege at a rate of 80 pages per hour. The Town’s IT staff already ran the email searches. They found a total of 175 pages including attachments of potentially responsive documents. Town staff has already expended 2.5 hours of searching for and locating responsive documents, and we are not yet sure we have all of them. Therefore, if you pay this estimate, the actual cost may raise as we continue to search for responsive documents, and we may find more. We estimate that Town staff would need at least 4.3 hours of time to compile, review, and segregate the documents for responsiveness for the documents we already found. (175/240=0.7 + 175/80=2.2 = ~2.9) In our experience, Town staff takes about half as much time to redact as they take to compile, review, and segregate. Thus, the Town’s good faith estimate of employee work time required to respond to your request, assuming production will be made electronically and delivered by email, is as follows: - TASK - HOURS Searching and locating At least 2.5 Compiling and segregating At least 2.9 Redacting At least 1.4 Reproducing Minimal 0.0 Total: At least 6.8 Accordingly, at a rate of $25 per hour, the total estimated fee for email delivery of responsive records would be at least $120.00, which is 6.8 hours, minus two hours, or 4.8 hours, times $25 per hour. …In this revised fee estimate, we are not charging a fee for the first two hours, although we believe we are entitled to as demonstrated in our earlier response. See SPR23/0535, at 4, citing Idaho Code § 74-102(11). Current Appeal In his appeal, Mr. Margolis argues, “[the Town] continues to charge for segregation and redaction time in spite of the August 4 fee petition denial and previous appeal determinations.

Kerry Fleming SPR23/1907 Page 4 August 31, 2023 [The Town] may not charge for that time.” Although the Town provides a fee estimate of at least $120.00 in its August 16, 2023 response, the Town may not assess a fee for redaction or segregation that is not required by law. In my August 4th determination, I found that in light of the fact that the Town had not demonstrated that it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records could not be granted. See 23/1785 Determination of the Supervisor of Records (August 4, 2023). 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). Therefore, the Town may assess a fee for an attorney to segregate or redact information that falls within the attorney-client privilege. However, the Town may not assess a fee to segregate or redact the non-privileged records. 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). 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). 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