Jude Ahern v. Wellfleet, Town of - Town Clerk (SPR 20233089)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 29, 2023 SPR23/3089 Jennifer M. Congel Town Clerk Public Records Access Officer 300 Main Street Wellfleet, MA 02667 Dear Ms. Congel: I have received your petition on behalf of the Town of Wellfleet (Town) seeking an extension of time to produce records, a waiver of statutory limits on fees that may be assessed in responding to the request, and relief from the obligation to produce responsive records. 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. Id. On December 6, 2023, Jude Ahern requested: All correspondence, documents, files, messages and any communication between the Wellfleet Beach Department and Council on Aging and any of its employees most importantly its Director . . . and the Wellfleet Town Administrator, Assistant Town Administrator or Human Resources Director related to their complaints about the Wellfleet Selectboard or any of its members and any and all members of the Public who are now broadly characterized as not ‘civil’ since January, 2019… Additionally, on December 7, 2023, Ms. Ahern requested: All correspondence, documents, files, messages and any communication between the Wellfleet Shellfish Department or any individual working for the Wellfleet Shellfish Department, most importantly its Director . . . and the Wellfleet Town Administrator, Assistant Town Administrator, Union Representatives, Union liaisons or Human Resources Director related to their complaints about the Wellfleet Selectboard or any of its members, any committee most importantly the Shellfish Advisory Board and the Dredging Task Force, and any and all members of the Public who are now broadly characterized as not ‘civil’ since January, 2019. 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

Jennifer M. Congel SPR23/3089 Page 2 December 29, 2023 All correspondence, documents, files, messages and any communication between the Town Administrator and the Selectboard or any members of any Wellfleet committee about these complaints while appearing before the Selectboard and committees which [named individuals] believe have not been addressed as referenced in a letter read and submitted on their behalf to the Wellfleet Selectboard… on December 5, 2023. Petitions 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) shall 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). Request for Additional Time to Produce Responsive Records In its December 21, 2023 petition, the Town stated, “the Town requests that the Supervisor authorize an extension of time of an additional thirty business days[.]” Additionally, in an email sent to this office on December 22, 2023, the Town further states, “I would also ask that you take into consideration, that I am the only full-time employee

Jennifer M. Congel SPR23/3089 Page 3 December 29, 2023 in my office. I do have an Assistant town Clerk for 18 hours a week, but we are approaching the time were we start to receive census forms back, dog licenses, and we will be in a 2024 Presidential election cycle.” I find that in light of the need to search for, collect, segregate and examine the records, the capacity of the Town to produce the request without an extension, and efforts undertaken by the Town in fulfilling the current request, the Town has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The Town is granted an extension of 30 business days. Petition to assess fees 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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,

Jennifer M. Congel SPR23/3089 Page 4 December 29, 2023 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). Request for waiver of statutory limits on fees In its petition, the Town states the following in support of a waiver of statutory limits on fees, “the Town requests that the Supervisor authorize … a waiver of statutory limits on fees that may be assessed in connection with responding to said requests on an as needed basis, to include the hourly rate of the RAO at $45.00 instead of the $25.00 limitation.” I find the Town has not met its burden to explain how the request could not be prudently completed without assessing a fee in excess of $25.00. Request for Relief In its petition, “[t]he Town respectfully requests that the Supervisor of Records relieve it of its obligation to respond to the requests dated 12/6/2023, and 12/7/2023 or provide copies of records sought in any future duplicative requests[.]” In support of its request for relief, the Town argues the following: The Town respectfully submits to the Division that such requests and e-mails have been submitted solely in an effort to harass Town officials and to expend the Town’s limited staff resources to respond to the requests. The Requestor repeatedly seeks records apparently motivated by animosity towards certain officials and not a desire to disseminate information to the public about actual governmental activity. Additionally, the Requestor has sent countless emails directly to Town officials that are of a concerning and harassing nature… Here, the Requestor’s series of emails and requests for records are frivolous, duplicative, intimidating, designed to harass and disparage specific Town officials, and seek to waste time and resources as opposed to disseminating information about actual or alleged governmental activity. Specifically, it is estimated that the Requester has sent at least 38 requests so far this year, in addition to more than 65 requests in the past several years since 2020. The duplicative and broad nature of this recent series of requests, which has recently continued on a daily basis, is reflected in the attached requests from November 16 and December 6, 7, 8, and 11, 2023, enclosed herewith. In order to conduct these searches, particularly where the Town avers that the searches would be essentially fruitless, the Town would need to expend its limited resources. Nonetheless, the

Jennifer M. Congel SPR23/3089 Page 5 December 29, 2023 Town has diligently responded in good faith to each and every request, without complaint, for several years. Significantly, the Town further submits that the Requestor has continued an aggressive tone in recent requests and intimated that the intent behind these requests is to target certain officials, see December 6, 2023 Request (“And don’t even think about redacting it! Town Staff doesn’t want any privacy!!!!!!! They said so at a public meeting!!!!!!!!!!!!!”), which demonstrates that the frequent requests are of a harassing nature… In an email to this office dated December 22, 2023, Ms. Ahern objected to the petition. Based on the information provided in the Town’s petition, I find that the Town has not demonstrated that the requests are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c). Conclusion Accordingly, I find the Town has established good cause for a time extension of 30 business days as described above. However, I am unable to grant permission to charge in excess of $25.00 an hour. Additionally, I am unable to grant relief from the obligation to produce responsive records. Please note, the requestor 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Jude Ahern