J. Shannon Bianchi v. Nahant, Town of - Town Clerk (SPR 20242254)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 16, 2024 SPR24/2254 Dianne M. Dunfee Town Clerk Town of Nahant 334 Nahant Road Nahant, MA 01908 Dear Ms. Dunfee: On August 8, 2024, this office received your petition on behalf of the Town of Nahant (Town) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On August 2, 2024, John Shannon Bianchi requested the following: [E]mail records from January 1, 2024 to present sent or received from [an identified] . . . [member] of the Housing Plan Advisory Sub-committee . . . and . . . member of the Nahant Planning Board – about any and all Town related matters and potential Town matters, including election related matters and Town meeting matters. I am specifically seeking all emails sent or received by [the identified individual] to or from the following . . . [two identified email addresses] . . . to or from the following [four identified email addresses][.] 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; 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

Dianne M. Dunfee SPR24/2254 Page 2 August 16, 2024 (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. 36.06(4)(b). Current Petition In its August 8, 2024 petition, the Town seeks an extension of 25 business days. Subsequent to the opening of this petition, I learned that Mr. Bianchi agreed to the Town’s request for additional time. In an email to the Town dated August 9, 2024, Mr. Bianchi states, “that’s fine. Take your time, it’s fine with me. I certainly understand and don’t wish to bog you down. Thanks!” In light of Mr. Bianchi’s August 9, 2024 email, I find it is unnecessary to opine on the portion of the Town’s petition requesting an extension of time to produce records. Petitions 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).

Dianne M. Dunfee SPR24/2254 Page 3 August 16, 2024 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 determination that the request is not 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 (two) 2 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 10 C.M.R. 32.06(4) Current Petition In its petition, the Town seeks permission “to assess fees for compiling, examining and segregation of information[.]” In support of its request, the Town states: The request is very broad in its request for information included in the requested emails. . . . [S]ome of the email addresses requested . . . are personal emails of Town employees and will need to be personally checked to determine if the Town employee used their personal email for town business in the time frame requested. In a subsequent email to this office on August 12, 2024, a representative of the Town further explains:

Dianne M. Dunfee SPR24/2254 Page 4 August 16, 2024 I[n] addition, my petition for the ability to charge a fee for segregation and redaction, is if there are any emails with in the broad scope of Mr. Bianchi request including the personal emails of [three individuals] . . . may refer to or include residents’ personal emails or Phone numbers. I will not know for sure if there is such information until I review said emails. However, I am petitioning for this option on the side of caution. I find the Town has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Town from charging for segregation and redaction that is required by law. Conclusion Accordingly, I find the Town has not met its burden to assess a fee for segregation and redaction. This office encourages Mr. Bianchi and the Town to continue 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). Sincerely, Manza Arthur Supervisor of Records cc: John Shannon Bianchi