Jason Forgue v. Chester, Town of - Town Clerk (SPR 20242718)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 11, 2024 SPR24/2718 Terry Donovan Town Clerk Town of Chester 15 Middlefield road Chester, MA 01011 Dear Terry Donovan: I have received the petition of Jason Forgue appealing the response of the Town of Chester (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 7, 2024, Mr. Forgue requested, “[a]ny/all email communications to/from [two identified individuals] from the last 12 months through today. Information to be provided in digital format to email address above…This request includes all deleted emails as well.” On May 15, 2024, Mr. Forgue clarified that he is seeking all emails to and from each of the identified individuals during the specified time period. The Town responded on May 23, 2024, providing a fee estimate. Previous Appeal This request was the subject of a previous appeal. See SPR24/1959 Determination of the Supervisor of Records (July 17, 2024). In my July 17th determination, I closed SPR24/1959 in light of the Town providing Mr. Forgue with a further response on July 16, 2024. Objecting to the fees, Mr. Forgue petitioned this office and this appeal, SPR24/2718, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in 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

Terry Donovan SPR24/2718 Page 2 October 11, 2024 order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Fee Estimates – Municipalities If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Current Appeal In his July 9th appeal petition, Mr. Forgue states: There are two primary reasons for my appeal request. The first is the unreasonable cost attached to what I believe should be an easy request to satisfy. I am fully aware of the list of items which cannot be shared as part of a public records request but would have expected any items of that nature should have been properly sorted and stored in a manner which would make it easy to exclude. Second, the decision to have one of the individuals for which I am requesting e-

Terry Donovan SPR24/2718 Page 3 October 11, 2024 mails to be the person to sort through and send over what is determined relevant. For conflict-of-interest purposes, it should be a separate individual with no connection to the request. I do not agree with the statement in the town response that he is the only person capable of completing. The Town’s May 23rd and July 16th Fee Estimate In its May 23, 2024 response, the Town provides a total fee estimate of $630 and states: The Town Administrator and Town Clerk originally understood you to be asking for all emails between them during the preceding year. As you clarified, you are seeking all emails to each of them from any person and all emails from each of them to any person, including but not limited to emails between the two of them, and including also any deleted emails. You also ask that the emails be transmitted to you electronically. Your request poses unique challenges to the Town. There is literally no one in Town Hall who knows how to retrieve deleted emails, redact them where necessary and transmit them to you by email. The Town has had to get a quote from a consultant … for the work. They confirmed after your May 15th clarification that their price is $380. Beyond that, some of the emails, once retrieved, will likely have to be redacted, and others may need to be wholly withheld from production, because they fall into one or more exemptions from the definition of ‘public records.’ See G.L. c. 4, § 7, cl. 26th. The Town Administrator, in particular, communicates by email on a wide variety of subjects that would warrant redaction or withholding, including but not limited to executive session materials for the Select Board, medical and other confidential information relating to Town employees, security measures and emergency preparedness, and infrastructure and cyber vulnerabilities, Embedded within his emails are often confidential information such as email addresses and home addresses of Town personnel, and social security numbers, birth dates and account numbers for various persons. It is not possible, in advance of reviewing the contents of the many emails at issue, to say which or how many may be subject, in whole or in part, to such exemptions. … While large municipalities are barred from charging such fees for the first two hours of work, those under 20,000 in population are not. The Town of Chester, with a population of just 1,226 according to the 2020 decennial census, may charge for all hours so spent…. The Town anticipates that responding to your request will require, at a minimum, the efforts of the Town Administrator working 10 hours. Since his hourly rate of $30.70 is above the $25 threshold … the Town would charge $25 per hour for his review and redaction services. The Town thus estimates, conservatively and in good faith, that the cost of complying with your request will be at least $630 (i.e.

Terry Donovan SPR24/2718 Page 4 October 11, 2024 $380 + $250). The Town reserves the right to assess additional fees if this estimate proves inadequate … In its July 16, 2024 response, the Town provided the following additional information in support of its fee estimate: Mr. Forgue errs in claiming that the Town’s $630 estimate of the cost of complying with his public records request is excessive. [Identified individual] has almost 11,000 emails on his computer which he has received in the past year, and his ‘delete’ file contains about another 2,000 from recent months. He has nearly 6,000 emails that he has sent during the last 12 months. Additional emails are on the Town’s server. [Identified individual’s] emails are also voluminous. Every one of these emails must be at least briefly reviewed to ensure that confidential or privileged information is not being compromised. The Town Administrator routinely exchanges emails containing information that is protected by the attorney-client privilege, or that includes highly confidential health-related information of Town personnel, or that carries names, birth dates and social security or account numbers. In estimating that he can review and redact all of his and [identified individual’s] emails in just 10 hours, [identified individual] erred on the side of understatement. Nor is it fair for the requester to fault the Town for having to rely on an IT consulting firm to retrieve the emails. Chester is a community of only 1,226 persons. The whole Town government has just 5 full-time employees… The Town must rely on its IT vendor to comply with Mr. Forgue’s request… And for this, $380 is a bargain… Based on the Town’s response, it is unclear why the Town requires the amount of time described above to produce the records. In particular, it is not clear how much time is allocated to search for and compile the records, and how much time is allocated for segregation and redaction of the records. The Town must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Under the Public Records Law, 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. G. L. c. 66, § 10(d)(iii). However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). Consequently, the Town must clarify the hourly rate that it is charging for the work of consultant. Additionally, although the Town advises in its fee estimate that it anticipates making redactions where necessary, it is unclear if the Town is assessing a fee for redactions that are not

Terry Donovan SPR24/2718 Page 5 October 11, 2024 required by law. Under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). The Town must clarify if the redactions described in its fee estimate are required by law. I encourage Mr. Forgue and the Town to communicate further in order to facilitate producing records efficiently and affordably. G. L. c. 66, § 10(a)(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). For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Mr. Forgue with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Jason Forgue