Christopher Kelleher v. Brookfield, Town of - Town Clerk (SPR 20243138)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 4, 2024 SPR24/3138 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 26, 2024, Mr. Kelleher requested: … copies of any and all communications between the chair of the Brookfield Conservation Commission and [an identified individual], Paralegal with the Division of Open Government at the Massachusetts Office of the Attorney General, related to my Open Meeting Law complaint filed on September 20, 2024. Specifically, I am requesting any correspondence, including but not limited to emails, letters, and records of phone conversations, between the chair and [an identified individual] from the Attorney General’s office during the period of September 20, 2024, through October 23, 2024. This request seeks all communications discussing the status, review, or determination of the timeframe for my complaint, as referenced by the chair in his statement: ‘The Massachusetts Office of the Attorney General was consulted on this matter. Upon consultation with [an identified individual], Paralegal with the Division of Open Government with the Massachusetts Office of the Attorney General, it was determined that this complaint does not meet the requirements for review.’ The Town responded on November 12, 2024, providing a fee estimate. Unsatisfied with the response, Mr. Kelleher petitioned this office and this appeal, SPR24/3138, was opened as a result. 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 SPR24/3138 Page 2 December 4, 2024 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 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). The Town’s November 12th Response In its November 12, 2024 response, the Town provided a fee estimate of $75.00 and

Michael P. Seery SPR24/3138 Page 3 December 4, 2024 stated the following: The Town is allowed to charge for employee search time necessary to respond to your request, together with any redactions required by law. That time is charged at the hourly rate of the lowest paid person capable of compiling and reproducing responsive records, in accordance with 950 CMR 32.07(2)(i). Such hourly rate shall not exceed $25/hour unless otherwise authorized by the Supervisor of Records. Please note that because the Town has less than 20,000 residents, pursuant to the last Decennial U.S. Census (approximately 3,439), you will be charged for all hours of work associated with this request. It is anticipated that it will take the Conservation Commission Chair approximately 3 hours to search for and download potentially responsive text messages and e-mail communications. The lowest paid employees capable of performing the necessary search is paid more than $25/hour, so you will be charged the maximum rate. At 3 hours, the total fee estimate is $75.00. It is anticipated that records will be provided electronically, and therefore no per page copying fee will be charged, you will be provided with a supplemental fee estimate. Until such time as the fees estimated above are paid and the Town has conducted additional work in response to this request, it cannot state conclusively whether records will be withheld or redacted. If records are withheld or redacted, it is anticipated that the following will be the basis(es) for such redactions or withholding. The citing of such exemptions is not meant to be exhaustive, however, and the Town expressly reserves the right to assert application of additional exemptions, as appropriate. Nothing herein shall limit the Town’s ability to redact or withhold information in accordance with state or federal law and/or the attorney-client privilege. See G.L. c. 66, § 10(b)(iv). … Where you are engaged in litigation against the Conservation Commission, and this request appears directly related to that litigation, it is anticipated that responsive records may be withheld or redacted pursuant to Exemption (d). Current Appeal In his appeal petition, Mr. Kelleher stated, “the Town’s response has been unreasonably delayed. On November 12, 2024, Mr. Seery informed me via email that it would take three hours to locate and retrieve the requested records. This is not a reasonable explanation given the simplicity of the request, as the Town uses Outlook, which allows emails to be located and forwarded in a matter of seconds.” Although the Town has estimated that the process of compiling, reviewing, and preparing requested records requires 3 hours to produce responsive records, it is unclear why the Town

Michael P. Seery SPR24/3138 Page 4 December 4, 2024 requires this much time to search for the responsive records. The Town must provide additional information regarding the tasks involved in the search process. Accordingly, the Town must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reason discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Mr. Kelleher with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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: Christopher Kelleher