Zachary Wallack v. Executive Office of Housing and Livable Communities (SPR 20243383)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 23, 2024 SPR24/3383 Adrian Walleigh, Esq. Legal Counsel Records Access Officer Executive Office of Housing and Livable Communities 110 Cambridge Street, Suite 300 Boston, MA 02114 Dear Attorney Walleigh: On December 18, 2024, this office received your petition on behalf of the Executive Office of Housing and Livable Communities (Office/EOHLC) requesting permission to assess fees for time spent segregating and 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 Office furnished a copy of the petition to the requestor, Zachary M. Wallack. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 4, 2024, Mr. Wallack requested the following records: [1] All communications between the Executive Office of Housing and Living Communities and [a named attorney] and/or the law firm of Harrington Heep LLP, during the time period October 1, 2023 to the present concerning the Town of Needham and/or the MBTA Communities Act[;] [2] All communications between Executive Office of Housing and Living Communities and the Needham Town Clerk’s Office, including but not limited to [a named attorney] during the time period of October 1, 2023 to present concerning the Town of Needham and/or the MBTA Communities Act[;] [3] All communications between Executive Office of Housing and Living Communities and the Needham Town Manager’s, including but not limited to [identified individuals], during the time period of October 1, 2023 to present concerning the Town of Needham and/or the MBTA Communities Act[;] [4] All communications between Executive Office of Housing and Living Communities and the Needham Planning Department, including but not limited to 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

Adrian Walleigh, Esq. SPR24/3383 Page 2 December 23, 2024 [identified individuals], during the time period of October 1, 2023 to present concerning the Town of Needham and/or the MBTA Communities Act[;] [5] All communications between Executive Office of Housing and Living Communities and the Needham Select Board, including but not limited to [identified Select Board members], during the time period of October 1, 2023 to present concerning the Town of Needham and/or the MBTA Communities Act[;] [6] All communications between Executive Office of Housing and Living Communities and the Needham Planning Board, including but not limited to [identified Planning Board members], during the time period of October 1, 2023 to present concerning the Town of Needham and/or the MBTA Communities Act[;] [7] All communications between Executive Office of Housing and Living Communities and the Needham Housing Coalition, including but not limited to [identified individuals], during the time period of October 1, 2023 to present concerning the Town of Needham and/or the MBTA Communities Act[;] [8] All communications between Executive Office of Housing and Living Communities and the Massachusetts Office of the Attorney General during the time period of October 1, 2023 to present concerning the Town of Needham and/or the Town of Needham’s compliance and/or failure to comply with the MBTA Communities Act[;] [9] All internal Executive Office of Housing and Living Communities Communications during the time period of October 1, 2023 to present concerning the Town of Needham and/or the Town of Needham’s compliance and/or failure to comply with the MBTA Communities Act. Subsequently, on December 11, 2024, Mr. Wallack revised his request by providing multiple email addresses for the named individuals, offices, and entities in the December 4th request. 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 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;

Adrian Walleigh, Esq. SPR24/3383 Page 3 December 23, 2024 (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 Office requests “an additional 20 business days to respond to this request” and states, “[g]iven the number of documents to review, and the schedule constraints presented by the upcoming holidays, [we] estimate it will take us two to three weeks to complete the response to this request.” In light of the need to collect, segregate and examine the records, as well as the capacity of the Office to produce the records without an extension, the Office has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The Office is granted an extension of 20 business days. Petition to assess fees – Agencies A fee shall not assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records (Supervisor) under a petition. G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). 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).

Adrian Walleigh, Esq. SPR24/3383 Page 4 December 23, 2024 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 determination 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies 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. 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)(ii); 950 C.M.R. 32.06(4). Current Petition In its petition, the Office seeks to assess fees for time spent segregating and redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). In support of its request, the Office provides the following information: [E]OHLC conducted a search and identified approximately 495 documents responsive to this request. . . . [P]rivacy Exemption (G. L. c. 4, § 7 (26)(c)) – The documents requested contain

Adrian Walleigh, Esq. SPR24/3383 Page 5 December 23, 2024 or may contain personal identifying information, such as non-public mailing addresses, social security numbers, email addresses, phone numbers, dates of birth, and other information that is exempt from disclosure pursuant to the privacy exemption. . . . [A]ttorney-Client Privilege – Some of the records [sic] may be responsive to the request are communications between EOHLC staff and attorneys or amongst attorneys. These communications are subject to attorney-client privilege and are exempt from disclosure under the Public Records Law to the extent they consist of communications about legal matters between counsel and client, or between attorneys representing clients with a common interest. These communications were made in confidence for the purpose of obtaining or providing confidential legal advice, did not include any person who was not an employee or attorney within EOHLC, and were not otherwise disclosed to a third party. Accordingly, the privilege has not been waived. Based on the information provided in its fee petition, I find the Office 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). Conclusion As described above, I find that the Office has established good cause for a time extension of 20 business days. Accordingly, I find the Office 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 Office may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the Office to provide records in an efficient and affordable manner. Please note, Mr. Wallack 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). Sincerely, Manza Arthur Supervisor of Records cc: Zachary M. Wallack