Ethan Hunt v. Wareham, Town of - Fire District (SPR 20243405)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 24, 2024 SPR24/3405 Leo J. Peloquin, Esq. Norris, Murray & Peloquin, LLC. 315 Norwood Park South Norwood, MA 02062 Dear Attorney Peloquin: On December 20, 2024, this office received your petition on behalf of the Wareham Fire District (District) seeking an extension of time to produce records and requesting a waiver of statutory limits to fees that may be assessed in responding to the request. 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 District furnished a copy of the petition to the requestor, Ethan Hunt, of Wareham Week. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 6, 2024, Mr. Hunt requested the following records: [1] Any written complaints or formal reports submitted by employees regarding harassment by the Fire Chief . . .[;] [2] Any correspondence related to such harassment complaints (e.g., emails, letters, internal memos)[;] [3] Any investigations, findings, or reports resulting from these complaints[;] [4] Any actions taken or decisions made as a result of these complaints, including disciplinary measures or resolutions. 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: 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

Leo J. Peloquin, Esq. SPR24/3405 Page 2 December 24, 2024 (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (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 District requests “an extension of time to allow for an additional thirty (30) business days to respond to the attached public records request” and provides the following information in support of its request: [N]ot only are the requested records voluminous, but a review of the records will involve careful analysis by [me] to prevent the release of information which is exempt from disclosure, including to protect the personal privacy interests of individuals identified in the documents and the District’s attorney-client privilege. … [I] believe that there is a way to provide Mr. Hunt a more limited number of redacted documents which will be satisfactory to [him] and reduce costs associated with [his] request. [I] have contacted him about this but have not heard back. In light of the need to collect, segregate and examine the records, as well as the capacity of the District to produce the records without an extension, the District has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The District is granted an extension of 30 business days.

Leo J. Peloquin, Esq. SPR24/3405 Page 3 December 24, 2024 Petition to assess fees – Municipalities The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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). 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 understanding 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (two) 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).

Leo J. Peloquin, Esq. SPR24/3405 Page 4 December 24, 2024 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). Fee in Excess of $25.00 per Hour In its petition, the District is seeking approval “to charge our regular municipal rate of $235/hour to review and redact documents requested by Ethan Hunt.” The District provides the following in support of its request to charge fees in excess of $25.00 per hour: [M]r. Hunt’s request is voluminous and comes in four (4) parts. His request seeks records that contain information that is not subject to disclosure in whole or part based on exemptions under the public records law, including M.G.L. c. 4, s. 7(26)(c) (“Exemption C”) and attorney-client privilege...[.] … [I] am the only individual qualified to review and redact the documents on behalf of the District, including because of the confidential nature of the Complaint and Investigation of the Complaint. Based on the information provided in the District’s petition, I find the District has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). . In light of the factors in G. L. c. 66, § 10(d)(iv), I find the District may assess a fee limited to $75.00 per hour for attorney review of those records being reviewed for attorney-client privilege. Conclusion As described above, I find that the District has established good cause for a time extension of 30 business days. Additionally, I find the District may assess a fee limited to $75.00 per hour for attorney review as described above. Further, this office encourages Mr. Hunt and the District to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(a) municipality or agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality or agency to produce records sought more efficiently and affordably). When preparing a fee estimate for the provision of the requested records, the District is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The District must provide a response to Mr. Hunt within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4).

Leo J. Peloquin, Esq. SPR24/3405 Page 5 December 24, 2024 Please note, Mr. Hunt 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: Ethan Hunt