Paul Waple v. Swansea, Town of - Town Administrator (SPR 20242590)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 20, 2024 SPR24/2590 Mallory E. Aronstein Town Administrator Town of Swansea 81 Main Street Swansea, MA 02777 Dear Ms. Aronstein: On September 16, 2024, this office received your petition on behalf of the Town of Swansea (Town) seeking an extension of time to produce records and requesting permission to charge for time spent segregating or redacting responsive records, as well as a waiver of statutory limits on fees that may be assessed in responding to the request. 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 the petition to the requestor, Paul Waple. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On August 30, 2024, Mr. Waple requested “[c]opies of all Financials and internal and external communications pertaining to the purchase of and development of Medeiros Farm. I am requesting that the information requested herein be sent digitally in pdf format.” On September 3, 2024, Mr. Waple narrowed the request and stated, “[l]ets start with the financial documents and internal and external communications from January 1, 2023 to present.” Current Appeal This request is the subject of a current appeal, SPR24/2582. A decision on this matter will be issued within 10 business days. 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; 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

Mallory Aronstein SPR24/2590 Page 2 September 20, 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) 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 Responsive Records In its September 16th petition, the Town states: I hereby petition that the Town of Swansea be granted an additional 30 business days beyond the default statutory minimum of 25 business days, in order to respond to the request given the Town’s need to search former employees’ email and saved documents via our network administration vendor and then my time to search and segregate those emails and filed as provided for by law. The elements the requestor is seeking in the request of this particular topic as they relate to “financials and development” are quite broad. This parcel has state earmarks attributed to it, site planning initiates and conversations, public input sessions, procurement documents, accounting records, and much more. There, “development” covers a substantial amount of work as does “communications”. Moreover, much of the search, segregation and redaction of documents will need to be undertaken directly by me, insofar as the request encompasses my privileged text messages and emails, and I will need to find time to do so between my extensive duties as Town Administrator. I find that in light of the need to search for, collect, segregate or examine records, the scope of redaction required to prevent unlawful disclosure, and the capacity or the normal business hours of operation of the Town to produce the request without the extension, the Town has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iii).

Mallory Aronstein SPR24/2590 Page 3 September 20, 2024 Accordingly, the Town is granted an extension of 30 business days to furnish copies of records responsive to Mr. Waple’s request. Petitions to Assess Fees 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 (Supervisor) 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). 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 an agency’s petition to allow the agency 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). It is my determination 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 agency 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; 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 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 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.

Mallory Aronstein SPR24/2590 Page 4 September 20, 2024 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). Current Petition In its September 16th petition, the Town requests to charge for time spent segregating and redacting public records. In support of its request, the Town states: The scope of the request encompasses a large variety under an umbrella of “financials and development of Medeiros Farm” during a period of over four years where work has been active and ongoing in a variety of departments with a variety of employers, some of which have separated from service and will require personnel to review additional email inboxes. Such request is for “internal and external communications” that would encompass review of potential text messages on the subject matter as well. Additionally, some of the subject matter is legal, which is protected under attorney-client and attorney work product privileges, and Exemption (h) as it relates to the lease documents with the selected vendor on the property as well as those related to the Conservation Restriction discussions, and potentially (a), (d), (i), (o), and (p) of the Public Records Law. Therefore, review must be conducted in order to ensure against inadvertent disclosure of information and documentation that could harm the Town’s policy- making and legal interests and the protection of private information of those doing business with the Town. 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 redaction or segregation. 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. Fee in Excess of $25.00 per Hour In its petition, the Town states the following concerning its request to charge a fee in excess of $25.00 per hour: I hereby petition that I be permitted to charge for the search, segregation and redaction of these records by the following employees’ and their estimated time for completion and correspondence [sic] hourly rate: Employee/Title Hours to Hours to Hours to Hourly Total Search Segregate Redact Rate [identified 4 2 1 $65.00 $455.00 individual]/Assistant Town Administrator

Mallory Aronstein SPR24/2590 Page 5 September 20, 2024 [identified 4 7 3 $79.33 $1,110.62 individual]/Town Administrator Conservation – rate 3 3 1 $26.00 $182.00 of lowest paid employee to do the work Highway – rate of 2 4 0 $29.49 $176.94 lowest paid employee to do the work Town Accountant 1.5 2 0 $27.54 $96.39 rate of lowest paid employee to do the work $2,020.95 Based on the information provided in the Town’s petition, I find the Town has not met its burden to explain how the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Accordingly, permission to charge in excess of $25.00 per hour cannot be granted at this time. Conclusion Accordingly, I find the Town has established good cause for a time extension of 30 business days as described above. Additionally, to the extent the responsive records contain the exempt information discussed above, the Town may assess a fee for segregation and redaction. However, permission to charge a fee in excess of $25.00 per hour cannot be granted. This office encourages Mr. Waple and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a 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 municipality to produce records sought more efficiently and affordably). Please note, Mr. Waple 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).

Mallory Aronstein SPR24/2590 Page 6 September 20, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Paul Waple