Justin Cunningham v. Danvers, Town of - Town Clerk (SPR 20242728)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 7, 2024 SPR24/2728 Catherine S. Ellsworth Records Access Officer Town Clerk Town of Danvers One Sylvan Street Danvers, MA 01923-2790 Dear Ms. Ellsworth: On October 1, 2024, this office received your petition on behalf of the Town of Danvers (Town) requesting permission to charge for time spent segregating or redacting responsive records and seeking an extension of time to produce 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 Town furnished a copy of the petition to the requestor, Justin Cunningham. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 17, 2024, Mr. Cunningham requested the following records: [1] Vendors: A list of all vendors [your] institution has used from 2022-01-01 onward. For each vendor include Vendor Name, Vendor Contact Name, Vendor Contact Email, and Vendor Procurement Method[;] [2] Purchase Orders: A list of all purchase orders dated 2022-01-01 onward. For each purchase order include Purchase date, Vendor name, Line item details, Line item quantity, and Line item price[;] [3] Contacts: A list of all current employee/staff contact information. For each member include First Name, Last Name, Position Title, Town, and Employment Type ie: full-time, part-time, contractor, General Office Phone Number, Direct Office Phone Number, and Email Address. 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 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

Catherine S. Ellsworth SPR24/2728 Page 2 October 7, 2024 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; (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 Town requests “an additional 20 business days to respond to this request” and states that it “. . . makes this request for additional time because the employee who will perform the search, segregation and redaction process has many other responsibilities, which they cannot ignore.” In light of the need to collect, segregate and examine the records, as well as the capacity of the Town to produce the records without an extension, the Town has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The Town is granted an extension of 20 business days. 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).

Catherine S. Ellsworth SPR24/2728 Page 3 October 7, 2024 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). 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).

Catherine S. Ellsworth SPR24/2728 Page 4 October 7, 2024 Current Petition In its petition, the Town requests that it be permitted to charge $25 per hour “to segregate and redact the large volume of potentially responsive records.” In support of its request, the Town provides the following information: [W]ith respect to the vendor and purchase order portions of the request, the Town has identified spreadsheets with approximately 24,492 total line entries which may be potentially responsive to your request. [The Town] anticipates that the responsive records may contain the personal email addresses and personal phone numbers of certain vendors which are protected from disclosure pursuant to the privacy exemption to the Public Records Law, G.L. c. 4, § 7(26)(c). Additionally, the Town anticipates that certain purchase order details will reveal information regarding the devices used by the Town and its Police Department to secure its facilities, equipment, and cybersecurity, the disclosure of which would likely jeopardize public safety and Town/Police Department cybersecurity and which is exempt from disclosure pursuant to Exemption (n) to the Public Records Law. 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 segregation or redaction. 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. Conclusion Accordingly, as described above, I find that the Town has established good cause for a time extension of 20 business days. In addition, I find the Town has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the Town to provide records in an efficient and affordable manner. Please note, Mr. Cunningham 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).

Catherine S. Ellsworth SPR24/2728 Page 5 October 7, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Justin Cunningham James Donnelly, Esq., Murphy, Hesse, Toomey & Lehane, LLP.