Daralyn Heywood v. Orleans, Town of - Town Administrator (SPR 20241206)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 26, 2024 SPR24/1206 Kelly L. Darling, CMC Town Clerk Town of Orleans 19 School Road Orleans, MA 02653 Dear Ms. Darling: On April 22, 2024, this office received your petition on behalf of the Town of Orleans (Town) seeking an extension of time to produce records and requesting permission to charge for time spent segregating and 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, Daralyn Heywood. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 8, 2024, Ms. Heywood requested the following records: [1] A copy of the hiring folder and all its contents, for the hiring of the Orleans Assistant Town Manager, advertised on or about November 1, 2023[;] [2] Any and all documents including the proposal from Groux-White Consulting with regarding the hiring of a Town Administrator, to include all synthesis reports, all interviews of elected officials, and influential people in the community[;] [3] Any email correspondence between [identified individuals] from November 18, 2023 to present[;] [4] Phone toll records from the Town of Orleans cell phone paid for by the Town of Orleans for the use by Town Manager . . . as provided for by her Town of Orleans employment contract from the period, July 3, 2023 to present[;] [5] Email correspondence between [a named individual] and Fire Chief . . . from October 2023 to present[;] [6] All email correspondence between [identified individuals] and Police Chief … 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

Kelly L. Darling, CMC SPR24/1206 Page 2 April 26, 2024 from November 21, 2023 to present[;] [7] The entire procurement folder for redevelopment of 66 & 67 Rte 6A for housing. 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; (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 beyond the time specified under the statute” and provides the following information in support of its request: [G]iven the number of requests and the volume of potentially responsive records which require detailed review and redaction, the Town submits that it is not reasonable to require it to produce the responsive records within 10 business days.

Kelly L. Darling, CMC SPR24/1206 Page 3 April 26, 2024 [A]dditionally, the employee who will perform the search and recovery, segregation and redaction process has many other responsibilities which they cannot ignore. [The Town] will be unable to complete its review, redaction, and production of records during normal business hours of operation without an extension. 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 30 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). 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 understanding 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

Kelly L. Darling, CMC SPR24/1206 Page 4 April 26, 2024 ($.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 its petition, the Town requests “the ability to charge for redactions under the following exemptions” and provides the following in support of its request: [E]xemption (b) . . . The requested records likely contain internal personnel rules and practices related to hiring and bidding practices, or other rules and practices related to the Town Administrator’s role. This information will need to be withheld or redacted to the extent producing such information would inhibit the ability of the Town to properly perform such rules and practices. … [E]xemption (c) . . . The requested “hiring folder” likely contains personnel and medical file information. Additionally, the requested documents regarding the hiring of the Town Administrator, the requested emails, and the requested phone records, likely contain other materials and data related to specifically named individuals, the disclosure of which may constitute an unwarranted invasion of personal privacy. … [E]xemption (e) . . . The requested records likely contain personal records created by individual government employees during the above mentioned hiring or bidding processes, and which were not shared with others. … [E]xemption (o) . . . The requested hiring folder, emails, and phone records likely contain the home address, personal email address, or home telephone number of government employees. … [E]xemption (p) . . . The requested hiring folder, emails, and phone records likely contain the home address, personal email address, or home telephone number of

Kelly L. Darling, CMC SPR24/1206 Page 5 April 26, 2024 family members of government employees. In light of the Town’s petition, I find the Town has met its burden to explain how given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for the segregation and redaction of such exempt material. Conclusion As described above, I find that the Town has established good cause for a time extension of 30 business days. Accordingly, I find the Town has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the Town to provide records in an efficient and affordable manner. Please note, Ms. Heywood 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: Daralyn Heywood