Commonwealth Transparency v. Danvers, Town of - Town Clerk (SPR 20241566)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 31, 2024 SPR24/1566 James Donnelly, Esq. Town Counsel Town of Danvers One Sylvan Street Danvers, MA 01923-2790 Dear Attorney Donnelly: On May 23, 2024, this office received your petition on behalf of the Town of Danvers (Town) seeking an extension of time to produce records and requesting 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, Commonwealth Transparency (“requestor”). G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 6, 2024, the requestor sought various communications, payment, and conflict of interest documents relating to identified individuals and an accounting firm. This office notified the Town of this request on April 26, 2024. Previous Appeal This request was the subject of a previous appeal. See SPR24/1288 Determination of the Supervisor of Records (May 10, 2024). In my May 10th determination, I ordered the Town to provide a response to the requestor. The Town submitted the present petition on May 23, 2024. 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; 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

James Donnelly, Esq. SPR24/1566 Page 2 May 31, 2024 (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). Request for Additional Time to Produce Records In its petition, the Town requests, “fifteen (15) additional business days to reply to the Request.” In support of its request the Town provides the following information: In this case, the Town has identified approximately 537 records which are potentially responsive to the Request. The Town conservatively estimates that it will take approximately 9 hours (i.e. 1 record per minute) to review all 537 records and segregate and potentially redact any information that is exempt from disclosure pursuant to the Public Records Law. The Town anticipates that the records may contain information protected from disclosure by the Privacy Exemption to the Public Records Law, including the personal email addresses and personal phone numbers of members of the public. Each record needs to be reviewed to determine whether there is any information that is exempt from disclosure contained within. 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, and the scope of redaction required to prevent unlawful disclosure, 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.

James Donnelly, Esq. SPR24/1566 Page 3 May 31, 2024 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). 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, 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).

James Donnelly, Esq. SPR24/1566 Page 4 May 31, 2024 The Town submitted its petition on May 23, 2024, more than ten business days after receipt of the request. In light of the fact the Town has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(d). Conclusion Accordingly, I find the Town has established good cause for a time extension of 15 business days as described above. However, in light of the fact that the Town has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(g). Please note, however, this does not preclude the Town from charging for segregation and redaction that is required by law. 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: Commonwealth Transparency