Mary Dormer v. Carver, Town of - Town Clerk (SPR 20242496)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 18, 2024 SPR24/2496 Michelle Sheehan Town Clerk Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Sheehan: I have received the petition of Mary Dormer appealing the response of the Town of Carver (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 18, 2024, Ms. Dormer requested the following: [1.] all communications between all members of the ZBA (including alternates) from May 1, 2024 to and including July 17, 2024, including all emails, notes, letters, memos or any other correspondence that is not specifically mentioned here but is understood by a reasonable person of sound mind to be a form of communication; [2.] any and all legal opinions that the ZBA received regarding Read Custom Soils, collateral estoppel, Save the Pine Barrens, [a named individual] and Makepeace; [3.] any and all communication between any member of the ZBA (including alternates) and any employee, outside counsel… in-house counsel… farmers, truck drivers, members of the Cranberry Village Association Board of Directors or any other person with an interest in Read Custom Soils, LLC and Makepeace Corporation including emails, notes, letters, memos or any other correspondence that is not specifically mentioned here but is understood by a reasonable person of sound mind to be a form of communication; and [4.] all police reports regarding any type of assault that has now or in the past since 2014 regarding any employee, board member, executive, trucker or any other person associated with Makepeace who has access to Makepeace bogs and their holdings. 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

Michelle Sheehan SPR24/2496 Page 2 September 18, 2024 Previous appeal This request was the subject of a previous appeal. See SPR24/2216 Determination of the Supervisor of Records (August 19, 2024). The Town responded on September 3, 2024. Unsatisfied with the Town’s response, Ms. Dormer petitioned this office and this appeal, SPR24/2496, was opened as a result. Fees - 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 how 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). The Town’s September 3rd Response In its September 3, 2024 response, the Town provided a reduced fee estimate from $241.67 to $135.18 and breaks down its fee estimate as follows: Title Hours Rate per Hour Total Six ZBA [Zoning 1 hour each for a total $0.00 $0 (6 hours provided Board Authority] of 6 hours to search to you free of charge) Members for and locate e-mails ZBA Administrative 1.5 hours to compile $22.62 $33.93 Assistant and Police documents for review Department by Town Counsel Town Counsel 4.0 hours 3 minutes $25.00 $101.25 to review records redact where required by law and prepare a privilege log

Michelle Sheehan SPR24/2496 Page 3 September 18, 2024 Total 8 hours 35 minutes N/A $135.18 In its prior response the Town advised, “[w]here the lowest paid employee capable of doing this work are paid at rates of more than $25.00 per hour, [Ms. Dormer] will be charged at the maximum rate of $25.00 per hour.” The Town further stated, To date, Town Staff have searched for and identified over 325 communications and documents responsive to your request which must be reviewed by Town Counsel for attorney-client privilege or attorney work product and for which Town Counsel must prepare the privilege log required by G.L. c. 66, §10A(a); 950 CMR 32.06(3)(d). You have requested all communications between all members of the ZBA from May 1, 2024 to and including July 17, 2024, a period in which the ZBA was and continues to be actively involved in litigation. For example, the ZBA is currently a defendant in the case captioned Save the Pine Barrens, et al. v. Read Custom Soils, LLC, et al. Because you have requested all communications during a period in which the ZBA was involved in litigation and which are now the subject of litigation, as well as legal opinions from Town Counsel, these communications must be reviewed by Town Counsel for information that is privileged or may otherwise compromise the Town’s litigation strategy and thus are not subject to disclosure under the Public Records Law pursuant to G.L. c. 4, § 7(26). See Suffolk Construction Co. v. Div. Of Capital Asset Mgmt., 449 Mass. 444, 449-450 (2007)... Given the broad nature of your request, a determination of what records will have to be withheld or redacted pursuant to applicable privileges cannot be made until the review begins. It is estimated that it will take Town Counsel four (4) hours and 3 minutes to review these records (325 pages x 45 seconds/page). In light of the ongoing litigation, Town Counsel is the only employee with the necessary skill to determine whether the attorney-client privilege, attorney work product and/or other privileges and exemptions apply. Although, the Town indicates that it will assess a fee to “prepare a privilege log,” it is unclear how the Town may assess a fee for this under G. L. c. 66, § 10(d)(iii). I find the Town must provide additional information explaining how this task, constitutes time to search for, compile, segregate, redact, or reproduce records and how it is chargeable under G. L. c. 66, § 10(d)(iii). See August 19th determination. Further, the Town states “[i]n light of the ongoing litigation, Town Counsel is the only employee with the necessary skill to determine whether the attorney-client privilege, attorney

Michelle Sheehan SPR24/2496 Page 4 September 18, 2024 work product and/or other privileges and exemptions apply.” Based on the Town’s response, it is unclear whether the Town is charging for exemptions that are not required by law. See G. L. c. 66, § l0(d)(iii) (a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law for Exemption (a) or attorney client privilege or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv)). The Town must clarify. I encourage Ms. Dormer and the Town to communicate in order to facilitate producing records efficiently and affordably. Ms. Dormer may wish to narrow the parameters or include applicable factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Ms. Dormer with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Mary Dormer Gregg Corbo, Esq.