Nicholas P. Brown v. Norwood, Town of (SPR 20232497)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 27, 2023 SPR23/2497 David A. DeLuca, Esq. Town Counsel Murphy, Hesse, Toomey & Lehane, LLP 50 Braintree Hill Office Park, Fourth Floor Braintree, MA 02184 Dear Attorney DeLuca: On October 20, 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). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On September 12, 2023, Nicholas Brown requested the following from the time period of December 1, 2019 through the present: [1.] All communications, including, without limitation, emails, text messages, social media messages, of the Norwood Building Department relating to [a specified address] (hereafter the “Norwood Commerce Center”). [2.] All documents, records, and communications, including, without limitation, emails, text messages, social media messages, meeting minutes, and meeting agendas, of the Norwood Fire Department relating to the Norwood Commerce Center. [3.] All documents, records, and communications, including, without limitation, emails, text messages, social media messages, meeting minutes, and meeting agendas, of the Norwood Police Department relating to the Norwood Commerce Center. [4.] All documents, records, and communications, including, without limitation, emails, text messages, social media messages, meeting minutes, and meeting agendas, of the Norwood Zoning Board relating to the Norwood Commerce Center. [5.] All documents, records, and communications, including, without limitation, emails, text messages, social media messages, meeting minutes, and meeting agendas, of the Norwood Planning Board relating to the Norwood Commerce 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

David A. DeLuca, Esq. SPR23/2497 Page 2 October 27, 2023 Center. [6.] All documents, records, and communications, including, without limitation, emails, text messages, social media messages, meeting minutes, and meeting agendas, of the Norwood Municipal Light Department relating to the Norwood Commerce Center. [7.] All documents, records, and communications, including, without limitation, emails, text messages, social media messages, meeting minutes, and meeting agendas, of the Norwood Board of Selectmen relating to the Norwood Commerce Center[.] In the Town’s October 20th petition, the Town states that the September 12th request was forwarded to the Town on October 4, 2023, and provides the following explanation: [T]his request with an original date of September 12, 2023 was directed to counsel for the Town of Norwood retained by the Town’s insurance carrier in the ongoing litigation matter, Kadeema et. A. v. Norwood Commerce Center, Suffolk Super. Ct. #2284CV0470, and subsequently directed to the Norwood Town Clerk (RAO) on October 4, 2023. 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. 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.

David A. DeLuca, Esq. SPR23/2497 Page 3 October 27, 2023 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). Extension of Time to Produce Responsive Records In its October 20, 2023 petition, the Town states: The Town is in possession of approximately 3,500 records that have been identified in response to this request. All of these records need to be reviewed to determine if they are actually responsive to the request and whether any redactions are appropriate and justified under the Public Records Law… The Town estimates that it will take approximately 116 hours (i.e. 2 minutes per page) to search for (i.e. review the 3,500 records that have been gathered to determine if they are responsive to the request), segregate and potentially redact the 3,500 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 of the Town to produce the records 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 Mr. Brown’s request. See G. L. c. 66, § 10(c). To the extent possible, the Town must provide responsive records on a rolling basis. 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.

David A. DeLuca, Esq. SPR23/2497 Page 4 October 27, 2023 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 petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Conclusion As described above, I find that the Town has established good cause for a time extension of 30 business days. Regarding the Town’s petition to charge for time spent segregating and redacting the responsive records, the Town submitted its petition on October 20, 2023, more than ten business days after receipt of the request. In light of the fact the Town has not demonstrated it submitted a timely petition, permission to charge for time spent segregating and redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(g).

David A. DeLuca, Esq. SPR23/2497 Page 5 October 27, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Nicholas P. Brown Mary Williams