Matthew P. Horvitz, Esq. v. Brookline, Town of - Town Counsel (SPR 20232882)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 7, 2023 SPR23/2882 Ben Kaufman Town Clerk Town of Brookline 333 Washington Street First Floor, Room 104 Brookline, MA 02445 Dear Mr. Kaufman: On November 30, 2023, this office received your petition on behalf of the Town of Brookline (Town) requesting 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 request. 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 the petition to the requestor, Matthew P. Horvitz, Esq., of Goulston & Storrs, P.C. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On November 13, 2023, Attorney Horvitz requested the following records: [1] All documents, communications, and other public records referencing, discussing, or concerning the Town’s removal of any posters depicting people abducted by Hamas terrorists during the October 7 attack on Israel (the “Kidnapped Posters”)…[;] [2] All documents, communications, and other public records referencing, discussing, or concerning the Town’s endorsement or adoption of the International Holocaust Remembrance Alliance’s working definition of the term “antisemitism.”[;] [3] All documents, communications, and other public records referencing, discussing, or concerning any Resolutions regarding the State of Israel. The scope of this request includes the period of October 7, 2023, to the present[;] [4] All documents, communications, and other public records (including, without limitation, work orders and work requests) referencing, discussing, or concerning the removal of the Kidnapped Posters by the Department of Public Works 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

Ben Kaufman SPR23/2882 Page 2 December 7, 2023 (“DPW”)[;] [5] Documents disclosing DPW’s schedules, policies, and practices for cleaning public streets and property, including the removal of any “signs.” The scope of this request includes the period of January 1, 2023, to the present[;] [6] All documents, communications, and other public records (including, without limitation, work orders and work requests) referencing, discussing, or concerning the removal of any “signs” by DPW or enforcement of the Sign By-Law, Article 5.8, by the Building Commissioner. The scope of this request includes the period of January 1, 2023, until the present[;] [7] All documents and communications referencing, discussing, or concerning the Kidnapped Posters received from, sent to, or exchanged among any of the [identified individuals.] 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 or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). 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. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g).

Ben Kaufman SPR23/2882 Page 3 December 7, 2023 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 The Town submitted their petition on November 29, 2023, more than ten business days after receipt of the request. In light of the fact that the Town has not demonstrated 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 request, cannot be granted. 950 C.M.R. 32.06(4)(g). Sincerely, Manza Arthur Supervisor of Records cc: Matthew P. Horvitz, Esq. Kerry Fleming, Esq. Joe Callanan, Esq.