Joshua Bloom v. Berkshire Regional Planning Commission (SPR 20241975)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 16, 2024 SPR24/1975 Thomas Matuszko Executive Director Berkshire Regional Planning Commission 1 Fenn Street, Suite 201 Pittsfield, MA 01201 Dear Mr. Matuszko: On July 10, 2024, this office received your petition on behalf of the Berkshire Regional Planning Commission (Commission/BRPC) seeking an extension of time to produce records and requesting permission to assess fees 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 Commission furnished a copy of the petition to the requestor, Joshua Bloom. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 25, 2024, Mr. Bloom requested the following records: [1] Any and all video or audio recordings of meetings of any and all BRPC meetings, BRPC executive committee meetings, and Housatonic Rest of River meetings from 2018 till today, June 25, 2025[;] [2] Any email correspondences either of you have had relating to the retention of video and audio recordings. This request can be limited from November 1, 2023 to today, June 25, 2025[.] 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

Thomas Matuszko SPR24/1975 Page 2 July 16, 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). Current Petition In its petition, the Commission requests “an extra 30 days to respond after receipt of payment” and provides the following information in support of its request: [T]he hours necessary to comply are substantial. BRPC is leanly staffed. The recordings cannot be reviewed, segregated, and spliced within 10 business days. The sensitive nature of the recordings does not allow for BRPC to hire a temporary worker to conduct the review. … [H]owever, listening to, segregating, and splicing 116 recordings will take a substantial amount of time. BRPC does not have the staff to dedicate to this project, but rather must assign it to a staff person who will work on it while fulfilling her regular obligations. BRPC has reviewed an audio recording of one meeting to determine the amount of time it takes to listen to, segregate, and splice a recording to exclude the portion of the discussion protected from disclosure. It will take approximately ½ hour per recording, or a total of 58 hours to review all recordings. In light of the need to collect, segregate and examine the records, as well as the capacity of the Commission to produce the records without an extension, the Commission has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The Commission is granted an extension of 30 business days.

Thomas Matuszko SPR24/1975 Page 3 July 16, 2024 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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).

Thomas Matuszko SPR24/1975 Page 4 July 16, 2024 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 Commission requests “to charge fees for segregation and redaction of records” and provides the following in support of its request: [T]he Rest of the River meetings are a mix of Zoom or just audio recordings. There is a total of 116 different recordings for 92 meetings during the requested time frame. Many of these recordings are exempt from disclosure pursuant to exemption (a), as they refer to negotiations of an agreement that is deemed confidential pursuant to a court-approved settlement. BRPC is not a party to the confidentiality agreement and cannot waive it. … [I]n addition, the recordings include attorney-client privileged communications which, again, are not waivable by BRPC. The privilege is held by the member towns who comprise the Rest of the River committee, namely, Lenox, Lee, Stockbridge, Great Barrington, and Sheffield. [I] understand that the Select Boards of Sheffield and Lee have voted to release the executive session minutes but a majority of the towns have not…[B]ecause the consequences of disclosing attorney-client privileged materials to a third party may include a broad waiver of the privilege, careful review of all potentially privileged documents is paramount. Please be advised, records custodians may assess fees for time spent segregating or redacting records where such segregation or redaction is required by law. See 950 C.M.R. 32.07(2)(d) (stating that fee for segregation or redaction is permissible when approved by Supervisor or when required by law). Where the Commission only seeks to assess fees pursuant to Exemption (a) of the Public Records Law and attorney-client privilege, which is required by law, I find it unnecessary to opine on whether the Commission may assess fees for segregating and redacting the records. Conclusion As described above, I find that the Commission has established good cause for a time extension of 30 business days. In light of the above, it is unnecessary to opine on the Commission’s petition for permission to charge for time spent segregating or redacting responsive records required by law.

Thomas Matuszko SPR24/1975 Page 5 July 16, 2024 Please note, Mr. Bloom 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: Joshua Bloom