Frank Curry v. Danvers, Town of - Town Clerk (SPR 20241802)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 27, 2024 SPR24/1802 Catherine S. Ellsworth Records Access Officer Town Clerk Town of Danvers One Sylvan Street Danvers, MA 01923-2790 Dear Ms. Ellsworth: On June 19, 2024, this office received your petition on behalf of the Town of Danvers (Town) requesting permission to charge for time spent segregating or redacting responsive records and seeking an extension of time to produce 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, Frank Curry. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 6, 2024, Mr. Curry requested the following records: [1] Copies of Danvers’s current IT budget (or budget allocation for IT) & complete IT staff contact information contract or employee (name, title phone & email address). If a single document with the requested information, please provide multiple documents that collectively cover the requested information[;] [2] Copies of Danvers’s bills & invoices for network Services (internet, WAN, & LAN), voice (voip, copper, PBX), telephone equipment and services (hardware – software) from January 2024 to May 31, 2024 (or last bill received if monthly doesn’t exist). If a single document with the requested information doesn’t exist, please provide multiple documents that collectively cover the requested information[;] [3] Danvers’s current & external points of contact(s) for everything technical, including computers, alarms, cameras, & other related issues. Please include phone, email, title(s) and vendor agreements or contract(s) (if they exist). If a single document with the request [sic] information doesn’t exist, please provide multiple documents that collectively cover the requested information[;] 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

Catherine S. Ellsworth SPR24/1802 Page 2 June 27, 2024 [4] Copies of Danvers’s bills & invoices for servers, web hosting, web design, web maintenance & any cloud services from January 2024 to May 31 2024 (or last bill received if monthly doesn’t exist). If a single document with the requested information doesn’t exist, please provide multiple documents that collectively cover the requested information[;] [5] Copies of Danvers’s bills & invoices for printing, printer(s), copier(s) leases, purchases, and monthly charges from January 2024 to May 31 2024 (or last bill received if monthly doesn’t exist). If a single document with the requested information doesn’t exist, please provide multiple documents that collectively cover the requested information. 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).

Catherine S. Ellsworth SPR24/1802 Page 3 June 27, 2024 Current Petition In its petition, the Town requests “an additional 30 business days to respond to this request[,]” and provides the following information in support of its request: [The Town] makes this request for additional time because the employee who will perform the search, segregation and redaction process has many other responsibilities, which they cannot ignore. … [B]ased on the Town’s initial review, and given the significant search time required to locate the large number of responsive emails across all Town departments, the Town avails itself of twenty-five (25) additional business days to reply to the request pursuant to G.L. c. 66, § 10(b)(vi). 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

Catherine S. Ellsworth SPR24/1802 Page 4 June 27, 2024 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 the approximately 500 records that are potentially responsive to the request.” In support of its request, the Town provides the following information: [T]he Town estimates that there are at least 500 records which are potentially responsive to the request. The responsive records, including responsive bills, invoices, contracts, and more, are not stored within a central location at the Town. Instead, the Town’s RAO will have to communicate with each and every individual department across the Town to locate and identify responsive records. Employees in each individual department will then have to search for responsive records and communicate the results of their search to the Town’s RAO. … [T]he remaining records sought need to be reviewed and potentially redacted. A review of the approximately 500 records potentially responsive to the request indicates that redactions may need to be made pursuant to Exemption (c) for certain information, including, personal cell phone numbers and email addresses of the public, as well as Exemption (n), including information regarding the types

Catherine S. Ellsworth SPR24/1802 Page 5 June 27, 2024 of computer software and programs that the Town uses which would jeopardize the Town’s cyber security. 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 segregation or redaction. 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, Mr. Curry 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: Frank Curry James Donnelly, Esq., Murphy, Hesse, Toomey & Lehane, LLP.