Stephen W. Rider, Esq. v. Scituate, Town of - Town Administrator (SPR 20232559)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 1, 2023 SPR23/2559 Michelle Seghezzi Town of Scituate 600 Chief Justice Cushing Highway Scituate, MA 02066 Dear Ms. Seghezzi: On October 26, 2023, this office received your petition on behalf of the Town of Scituate (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 October 12, 2023, Attorney Stephen Rider requested: [1.] Documents sufficient to identify each and every fee charged, received and/or demanded by the Town during the Relevant Period for Peer Review and/or Engineering Review of any application made to the Town’s Planning Board, the Planning Board’s Design Review Committee or the Town’s Conservation Commission, and with respect to each such fee charged, received and/or demanded, the following: [a.] Documents sufficient to identify the applicant or applicants; [b.] Documents sufficient to identify the amount of such fee charged, received and/or demanded; [c.] Documents sufficient to identify the dates upon which such fee was originally charged or demanded, and the dates upon which such fee was paid; and [d.] A copy of the application with respect to which such fee was charged, received and/or demanded. [2.] All documents that relate to the “Planning Board Fee Schedule,” … [3.] All documents that relate to the “special review fee account or series of accounts to be established by Town Treasurer-Collector”… [4.] All documents that relate to the amendment to the Planning Board’s regulations adopted by the Planning Board at its meeting on August 10, 2023… [5.] Any and all documents that relate to the peer reviews performed with respect 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

Michelle Seghezzi SPR23/2559 Page 2 November 1, 2023 to the Stormwater Permit applications of 334 CJC Highway, LLC for Lots 2 and 3 on Chief Justice Cushing Highway… 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. 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 26th petition, the Town states: It must be noted that this request #1(a-d) and #3 has been partially complied with by documents provided electronically… The Town is in possession of approximately 150 pages of records that have been identified in response to this requests #2, #4 and #5. All of those records will 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 5-10 hours to search for and recover the requested

Michelle Seghezzi SPR23/2559 Page 3 November 1, 2023 documents responsive to this request, and an additional 2 minutes per page to review and redact any information… Seven and one half hours for search and segregation and 5 hours for review and redaction of exempt information… 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 Rider’s request. See G. L. c. 66, § 10(c). Petition to Assess Fees – Municipalities The 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).

Michelle Seghezzi SPR23/2559 Page 4 November 1, 2023 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). Current Petition In its October 26th 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 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 Rider 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 Rider’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

Michelle Seghezzi SPR23/2559 Page 5 November 1, 2023 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 Rider 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). Sincerely, Manza Arthur Supervisor of Records cc: Stephen W. Rider, Esq. David A. DeLuca, Esq.