Mary Dormer v. Carver, Town of - Town Clerk (SPR 20242815)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 25, 2024 SPR24/2815 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 SPR24/2815 Page 2 October 25, 2024 Previous appeals This request was the subject of previous appeals. See SPR24/2216 Determination of the Supervisor of Records (August 19, 2024) and SPR24/2496 Determination of the Supervisor of Records (September 18, 2024). In my September 18th determination, I found that the Town must clarify whether the Town is charging for exemptions that are not required by law. The Town responded on October 10, 2024. Unsatisfied with the Town’s response, Ms. Dormer petitioned this office and this appeal, SPR24/2815, 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). Current appeal In her appeal, Ms. Dormer states, “[Attorney] Corbo is not the RAO. He has not been identified as an alternative RAO and while the Town may have used him to respond to this request, the response was never even acknowledged by the RAO and therefore was never answered. Being town counsel does not give him authority that absolves the Town of their duties. Additionally, the response he did provide was not timely made, as Carver Town Hall closes at 4. It is an unfair advantage to the public for the State to allow the Town of Carver to charge me anything for their disregard of the public records law. Additionally, the town did not respond to this appeal in a timely manner. As a member of the bar, Mr. Corbo knows better and should not flaunt the law. Instead he should make sure that the Town has adequate training. Ultimately, the Town cannot charge me anything for these records.”

Michelle Sheehan SPR24/2815 Page 3 October 25, 2024 The Town’s October 10th Response In its October 10, 2024 response, the Town clarified its fee estimate, which was previously reduced 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 responsive communications ZBA Administrative 1.5 hours to identify $22.62 $33.93 Assistant and Police appropriate search Department terms, locate responsive records on the Town’s electronic servers, compile documents from 6 ZBA members into format capable for review and redaction by Town Counsel, documents for review by Town Counsel Town Counsel 4.0 hours 3 minutes $25.00 $101.25 to review records redact where required by law 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 in its prior response, 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 ... 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

Michelle Sheehan SPR24/2815 Page 4 October 25, 2024 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) ... 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. In its October 10th response, the town states, “[t]he Town estimates that it will cost a total of $135.18 to provide responsive records that are subject to mandatory disclosure. Please be advised that the estimate only includes the time it is expected to take to segregate and redact documents subject to Exemption (a) and/or the attorney-client privilege; provided, however, that although no additional fee is being assessed with respect to records subject to other exemptions, the Town reserves the right to redact or withhold documents subject to any exemption in the Public Records Law.” In light of the information provided in the Town’s October 10th response and its prior responses, I find the Town has met its burden to establish that it would take this amount of time to search for, segregate and/or redact the responsive records. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). I encourage Ms. Dormer and the Town to communicate further in order to facilitate producing records efficiently and affordably. Ms. Dormer may wish to narrow her request to enable the Town to produce records efficiently and affordably. Conclusion Accordingly, I will consider this administrative appeal closed. Ms. Dormer is advised that this office shares jurisdiction with the Superior Court. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Mary Dormer Gregg Corbo, Esq.