Jeremy Margolis v. Brookline, Town of - Town Clerk (SPR 20232966)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 22, 2023 SPR23/2966 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 SPR23/2966 Page 2 December 22, 2023 Executive Research Forum that include [identified names]. Previous Appeals and Petition These requests were the subject of previous appeals and a petition from the Town. See SPR23/0535 Determination of the Supervisor of Records (April 4, 2023), SPR23/1306 Determination of the Supervisor of Records (June 30, 2023), SPR23/1667 Determination of the Supervisor of Records (August 2, 2023), 23/1785 Determination of the Supervisor of Records (August 4, 2023) and SPR23/1907 Determination of the Supervisor of Records (August 31, 2023). In my August 31st determination, I found that the Town may not assess a fee to segregate or redact records unless such segregation or redaction is required by law, and I ordered the Town to revise its fee estimate or provide further explanation of how the fees are consistent with G. L. c. 66, § 10(d). Subsequently, the Town responded on September 12, 2023, arguing that redactions pursuant to Exemption (c) of the Public Records Law are “required by law.” Unsatisfied with the Town’s response, and continuing to object to the fees, Mr. Margolis further appealed, and this case was opened as a result. Subsequent to the opening of this appeal, the Town provided a supplemental response to Mr. Margolis and this office on December 12, 2023, reiterating the Town’s argument concerning fees for redactions under Exemption (c). The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Kerry Fleming SPR23/2966 Page 3 December 22, 2023 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). The Town’s September 12th and December 12th Responses In its September 12, and December 12, 2023 responses, the Town incorporates by reference its previous August 16, 2023 fee estimate for “at least $120.00.” In its September 12th response, the Town argues the following: As [the Supervisor’s] office noted in SPR21/0654, on page three, “A general applicant who fails to advance past the initial application stage maintains an undiminished privacy interest in his or her identity.” ... Thus, the Town is required by law to segregate and redact information the requestor is seeking. Otherwise, the Town would be violating the applicants’ “undiminished privacy interest in his or her identity.” In the Town’s response from March 17, 2023, [the Town] wrote that “Examples of information that may be not responsive or exempt from disclosure … may include portions of responsive documents that mention other non-finalist candidates and include personal or otherwise private information about those other non-finalist candidates. In which case, portions of those responsive documents may be exempt from public disclosure under Exemption (c) of the PRL.” In the Town’s response from June 13, 2023, [the Town] wrote that “It is not that the Town refuses to produce documents. Besides the documents we have produced [in response to this request, which we produced on March 2, 2023], despite the repetitive nature of these requests, the Town produced documents in response to at least four other requests [the requestor] has made that are not subject to this appeal.” ...

Kerry Fleming SPR23/2966 Page 4 December 22, 2023 [The Town] object[s] to producing non-public documents that would violate people’s privacy rights. To protect these individual’s rights, we are required by law to redact their personal information. Otherwise, the Town could face a lawsuit for civil rights violations, merely because a requester refuses to pay a fee SPR repeatedly acknowledges the Town is permitted to charge. The Town is advised that, as noted above, 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 is further advised that information that is “required by law” to be segregated or redacted is found in statutes that explicitly indicate that certain records or information are not public records. Some common examples are the student record statute (G. L. c. 71, § 34D), the Criminal Offender Record Information (CORI) Act (G. L. c. 6, § 167), and laws regarding the confidentiality of domestic violence records (G. L. c. 41, § 97D; G. L. c. 41, § 98F; G. L. c. 209A, § 8). These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege is also interpreted to be “required by law.” Accordingly, while the Town may assess a fee for segregation and redaction pursuant to Exemption (a) and the attorney-client privilege, the Town is not permitted to assess a fee for segregation and redaction under Exemption (c). For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Mr. Margolis with a response to his request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Jeremy Margolis Joe Callanan, Esq.