Christopher Kelleher v. Brookfield, Town of - Town Clerk (SPR 20243135)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 26, 2024 SPR24/3135 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 9, 2024, Mr. Kelleher requested: … copies of any and all emails, text messages, or other forms of communication between [a named individual] of the Brookfield Conservation Commission and the All Boards Clerk regarding agenda items and/or executive sessions … communications related to executive session topics, including posting instructions, how agenda items should be handled, and whether the topic or case should be named or whether the name of the lawsuit should be cited for the executive session. This request covers communications sent or received within the last 100 days. The Town provided a response on October 16, 2024. Unsatisfied with the response, Mr. Kelleher petitioned this office and this appeal, SPR24/3135, was opened as a result. 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 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 SPR24/3135 Page 2 November 26, 2024 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). The Town’s October 16th Response In its October 16, 2024 response, the Town informed Mr. Kelleher that there were approximately 700 emails responsive to his request, and provided a fee estimate of $773.30 “… for all time associated with responding to this request.” Current Appeal In his November 19, 2024 petition to this office, Mr. Kelleher objects to the Town’s fee estimate as “… grossly exaggerated and rais[ing] serious concerns about transparency.” Mr. Kelleher requested that this office: 1. Review the Brookfield Conservation Commission’s response to determine whether their claim of 700 emails and 38 hours of labor is consistent with the scope of my request and the capabilities of Microsoft Outlook. 2. Instruct the Conservation Commission to fulfill my narrowed request for 35 emails, which should fall well below the two-hour labor threshold. 3. Investigate whether the Commission is inflating records or labor estimates to discourage transparency. Modification of the Scope of the Request Subsequently on November 19, 2024, Mr. Kelleher informed the Town that he wished to modify his October 9, 2024 request to include only “… the first 35 emails exchanged between [the named individual] and the All Boards Clerk regarding agendas and executive sessions within the past 100 days.” In light of both parties’ willingness to communicate in order to modify the scope of the request, I find it is unnecessary to opine on the Town’s October 16th fee estimate at this time.

Michael P. Seery SPR24/3135 Page 3 November 26, 2024 Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Kelleher is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Christopher Kelleher