Christopher Kelleher v. Brookfield, Town of - Town Clerk (SPR 20243129)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 2, 2024 SPR24/3129 Michael P. Seery Town Clerk Town of Brookfield 6 Central Street Brookfield, MA 01506 Dear Mr. Seery: I have received the petition of Christopher Kelleher appealing the response of the Town of Brookfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 25, 2024, Mr. Kelleher requested the following from the period of July 1, 2024 through October 23, 2024: [1.] All Personal text messages [an identified individual] allegedly sent to the following commission members that are considered harassing… [2.] All personal emails [an identified individual] allegedly sent to these same commission members that are considered harassing. The Town provided a response on November 4, 2024, providing a fee estimate. Unsatisfied with the response, Mr. Kelleher petitioned this office and this appeal, SPR24/3129, 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 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 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

Michael P. Seery SPR24/3129 Page 2 December 2, 2024 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 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 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 his appeal petition, Mr. Kelleher stated, “[m]y request explicitly outlined the timeframe (July 1, 2024, to October 23, 2024), the individuals involved, and the types of communications sought (texts and emails)… The claim that it would take two hours per member to locate records is grossly exaggerated. I know the scope of the records because I was able to retrieve all related communications from my side within 15 minutes… My interactions with commission members were minimal…” Subsequent to the opening of this appeal, on November 19, 2024, Mr. Kelleher sent an email and stated the following: To address the Town’s concern about interpreting what is or is not ‘harassing,’ I am revising my request. I now request all texts and emails exchanged between

Michael P. Seery SPR24/3129 Page 3 December 2, 2024 myself and the named individuals . . . during the period of July 1, 2024, through October 23, 2024. This revision removes any subjective evaluation from the scope of the request, ensuring clarity and specificity. However, this change does not affect the very limited volume of records that should exist based on the nature of my interactions with these individuals. The Town’s November 4th Response In its November 4, 2024 response, the Town provided a fee estimate of $200.00 and stated the following: [Mr. Kelleher’s] request seeks personal evaluations by Conservation Commission members as to what is or is not a “harassing” text or email, which is not appropriate for a public records request. [Mr. Kelleher] clearly should have copies of e-mails and text messages [he] sent to Conservation Commission members; it is not the Town’s obligation under the Public Records Law to qualify, characterize, or evaluate such records to identify those that are responsive to [his] request as stated. Moreover, this request, as framed, appears directly related to [Mr. Kelleher’s] claims against the Commission, Christopher Kelleher et al. v. Brookfield Conversation Commission, Worcester, Superior Court C.A. No. 2485CV01201. Indeed, [Mr. Kelleher has] made several requests in recent days for information related to the Conversation Commission and in furtherance of [his] litigation against the Commission. … With all of this in mind, should the Town be required to respond to [Mr. Kelleher’s] request, it will assess the following fees. … Please note that because the Town has less than 20,000 residents, pursuant to the last Decennial U.S. Census (approximately 3,439), [Mr. Kelleher] will be charged for all hours of work associated with this request. It is anticipated that it will take the Conversation Commission members on average 2 hours per member to search for and download potentially responsive text messages and e-mail communications, for a total of 8 hours. The lowest paid employees capable of performing the necessary searches are paid more than $25/hour, so [he] will be charged the maximum rate. At 8 hours, the total fee estimate is $200.00… … Where [Mr. Kelleher is] engaged in litigation against the Conversation Commission, and this request appears directly related to that litigation, it is

Michael P. Seery SPR24/3129 Page 4 December 2, 2024 anticipated that responsive records may be withheld or redacted pursuant to Exemption (d). Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the ongoing litigation, Christopher Kelleher et al. v. Brookfield Conversation (2485CV01201), I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Christopher Kelleher