Gabriel T. Dym, Esq. v. Norwood, Town of - Town Clerk (SPR 20232481)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 25, 2023 SPR23/2481 Mary Lou Folan Town Clerk Town of Norwood 566 Washington Street, Room 27 Braintree, MA 02062 Dear Ms. Folan: On October 19, 2023, this office received your petition on behalf of the Town of Norwood (Town) seeking an extension of time to produce records and requesting permission to charge for time spent segregating and redacting responsive records under G. L. 66, § 10(d)(iv). G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). On October 25, this office received an amendment to the petition. As required by law, it is my understanding that the Town furnished a copy of this petition and the amendment to the requestor. G. L. c. 66, § 10(c). On October 13, 2023, Attorney Gabriel Dym requested numerous records relating to Ambassador Pools Distributors, Inc. and pools located at various specified addresses. 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; (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. 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

Mary Lou Folan SPR23/2481 Page 2 October 25, 2023 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 the Town’s October 19th petition, the Town states: The Town is in possession of approximately 3,793 records that have been identified in response to this request…. The Town requests an additional 30 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 they cannot ignore. In its October 25th amendment, the Town states: Upon delivery of [the Town’s] Fee and Time petition, the requestor supplemented the request to limit the date range of the request to October 1, 2022 to present.…The Town is in possession of approximately 1,170 records that have been identified in response to this updated request.… The Town estimates that it will take approximately 39 hours (i.e. 2 minutes per page) to search for (i.e. review the 1,170 records that have been gathered to determine if they are responsive to the request), segregate and potentially redact the 1,170 records.… The Town requests an additional 30 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 they cannot ignore. I find that in light of the capacity 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 30 business days to furnish copies of records responsive to Attorney Dym’s request. See G. L. c. 66, § 10(c).

Mary Lou Folan SPR23/2481 Page 3 October 25, 2023 Petition to Assess Fees – Municipalities The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the 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 a municipality’s petition to allow the municipality 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). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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

Mary Lou Folan SPR23/2481 Page 4 October 25, 2023 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 October 19th petition, the Town states the following: The records sought in the request need to be reviewed and potentially redacted under Exemption (c) of the Public Records Law… The responsive records are likely to contain personal information such as names, addresses, phone numbers, and other personal information relating to individuals that are not public figures. As a result, the records will need to be reviewed to determine whether any information contained therein is protected by Exemption (c). In its October 25th amendment, the Town reiterated its argument for redaction of the records. In light of the Town’s petition, 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). To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for the segregation and redaction of such exempt material. This office encourages Attorney Dym and the Town to continue to communicate 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 records sought more efficiently and affordably). Conclusion I find 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 30 business days to furnish copies of records responsive to Attorney Dym’s request. See G. L. c. 66, § 10(c). Additionally, 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). To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for the segregation and redaction of such exempt material. Please note, Attorney Dym 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), 10A(c).

Mary Lou Folan SPR23/2481 Page 5 October 25, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Gabriel T. Dym, Esq. David A. DeLuca, Esq.