Kayla Avery v. Norwood, Town of (SPR 20240492)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 20, 2024 SPR24/0492 Mary Lou Folan Town Clerk Town of Norwood 566 Washington Street, Room 27 Norwood, MA 02062 Dear Ms. Folan: On February 14, 2024, this office received your petition on behalf of the Town of Norwood (Town) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting 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 the petition to the requestor, Kayla Avery of Law Offices of F. Reed Cutting, LLC. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 31, 2024, Ms. Avery requested the following material: [1] Any and all documents pertaining to the property: 475 Boston Providence Highway, Norwood, MA – Owner, Margaretmit LLC/David Spiegel[;] [2] Any and all documents pertaining to the property: 441 Boston Providence Highway, Norwood, MA. 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; 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

Mary Lou Folan SPR24/0492 Page 2 February 20, 2024 (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 its petition, the Town requests “an additional 30 business days to respond to this request.” In support of its request, the Town provides the following information: [The Town] makes this request for additional time because the employee who will perform the search and recovery, segregation and redaction process has many other responsibilities, which they cannot ignore, including responding to other public records requests on top of their already full workload. In light of the need to collect, segregate and examine the records, as well as the capacity of the Town to produce the records without an extension, the Town has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The Town is granted an extension of 15 business days. 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).

Mary Lou Folan SPR24/0492 Page 3 February 20, 2024 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). 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Current Petition In its petition, the Town requests it be permitted to charge $25 per hour “to search for, segregate and potentially redact records that are responsive to the request.” In an email to the Division on February 15, 2024, the Town states “Ms. Avery has narrowed the scope of [her] request and agreed to pay the Town’s revised fee of $70.”

Mary Lou Folan SPR24/0492 Page 4 February 20, 2024 In light of the above, it is unnecessary to opine on the Town’s petition to charge for time spent segregating or redacting responsive records. Further, this office encourages Ms. Avery and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Conclusion As described above, I find that the Town has established good cause for a time extension of 15 business days. In light of the Town’s response dated February 15, 2024, I find it unnecessary to opine on the Town’s fee petition. Further, this office encourages Ms. Avery and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Please note, Ms. Avery 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: Kayla Avery, Law Offices of F. Reed Cutting, LLC. James Donnelly, Esq., Murphy, Hesse, Toomey & Lehane, LLP.