Jack Riemer v. Truro, Town of - Town Clerk (SPR 20240973)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 4, 2024 SPR24/0973 Elisabeth Verde Town Clerk Town of Truro Town Hall, P. O. Box 2030 24 Town Hall Road Truro, MA 02666 Dear Ms. Verde: On March 29, 2024, this office received your petition on behalf of the Town of Truro (Town) seeking an extension of time to produce 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, I understand that the Town furnished a copy of this petition to the requestor, Jack Riemer. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 18, 2024, Mr. Riemer requested the following: [1.] Any communications during the stated period on which [a named individual’s] name appears as a recipient, sender, or in the title or text of such communication to or among Town officials or employees; to or among Town of Truro Boards or Committee members, vendors and contractors; to and from any State elected official or staff member; to and from any taxpayer or resident or resident (full or part-time); to or from any nonprofit; to and from any newspaper or other media outlet. [2.] Any communications during the stated period which [a second individual’s] name appears as a recipient, sender, or in the title or text of such communications to or among Town officials or employees; to or among Town of Truro Board or Committee members, vendors and contractors; to and from any State elected official or staff member; to and from any taxpayer or resident (full or part-time), to or from any non-profit; to and from any newspaper or other media outlet. In a letter to this office on April 1, 2024, Mr. Riemer objects to the Town’s petition. Additionally, please note that the Town’s March 22, 2024 fee estimate is currently the subject of SPR24/0919. 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

Elisabeth Verde SPR24/0973 Page 2 April 4, 2024 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. 32.06(4)(b). Request for Additional Time to Produce Responsive Records In its petition, the Town requests “an extension of fourteen (14) days” days and provides the following information in support of its request: Both [named individuals] are, and have been, members of several Town boards and committees, meaning that every email sent to these bodies, including routine administrative emails, will be included in search results. Based on the RAO’s experience responding to similarly broad requests, a search of the Town’s records (in particular, of emails) associated with this request will yield thousands of documents. . . . Town staff have made several attempts to work with Mr. Riemer to narrow the scope of his request - e.g., suggesting that he provide “key words” for a search -

Elisabeth Verde SPR24/0973 Page 3 April 4, 2024 but he has declined to do so. As a result, the Town must review for privilege every document resulting from Mr. Riemer’s broad and unmodified request. This effort will entail many hours of staff time for review, segregation and/ or redaction. The number of hours required for review is directly related to the breadth of the records request and resulting volume of documents. . . . In addition, as noted in prior responses and petitions, the Town continues to receive an unprecedented volume and concentration of Public Records requests. Addressing these requests - including communicating with requestors and tracking the progress of each request - has come to require the full-time attention of a Town employee, whose regular duties are juggled by other staff or are unattended. The Town has fulfilled a number of these Public Records requests within the time periods required by law. However, and despite determined efforts, Town staff have been unable to keep up with the unprecedented pace of records requests while continuing to provide the services expected at Town Hall. I find that in light of the need to search for and collect the records, the capacity of the Town to produce the request without the extension, efforts undertaken by the Town in fulfilling the current request and previous requests, 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 10 business days. Petition to Assess Fees – Municipalities The Supervisor of Records (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;

Elisabeth Verde SPR24/0973 Page 4 April 4, 2024 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, 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). Petition to Assess Fees in Excess of $25.00 per Hour In its petition, the Town states the following concerning its request to charge a fee in excess of $25.00 per hour: Specifically, the Town seeks the Supervisor’s approval to charge $75.00 per hour for these tasks. The Town represents in good faith that this fee is not designed to limit, deter or prevent access to the requested records, but rather is reasonable given the scope of the request combined with the burdens currently experienced by the Town with respect to public records requests as described above. A fee of $25.00 per hour does not approach the cost to the Town in terms of staff time needed to comply with this (and other) public records requests. It is therefore not prudent for the Town to charge a fee of only $25.00 per hour for the time spent to comply with this request. Based on the information provided by the Town, I find the Town has not met its burden to explain how the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the Town has established good cause for a time extension of 14

Elisabeth Verde SPR24/0973 Page 5 April 4, 2024 business days as described above. However, the Town has not met its burden to assess a fee in excess of $25.00 per hour for segregation and redaction of the responsive records. This office encourages Mr. Riemer and the Town to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to 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). Any subsequent fee estimate from the Town must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Riemer 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: Jack Riemer