Steve Snow v. Hopkinton, Town of (SPR 20243463)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 7, 2025 SPR24/3463 Connor Degan Town Clerk Town of Hopkinton 18 Main Street Hopkinton, MA 01748 Dear Mr. Degan: On December 31, 2024, this office received the petition of Attorney Bryan F. Bertram, of Harrington Heep LLP, on behalf of the Town of Hopkinton (Town) requesting permission to assess fees for time spent segregating and redacting responsive 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 Town furnished a copy of the petition to the requestor, Steve Snow. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On December 16, 2024, Mr. Snow requested the following: 1. All sections of the Town of Hopkinton’s police, fire, EMS, and school district emergency response protocols and/or policies that were active and operational on September 30, 2024 that outline the roles, responsibilities, and protocols of Hopkinton: (a) Police department employees; and/or (b) Fire/EMS department employees; and/or (c) School district employees in the event of an active shooter emergency and/or swatting threat at any Hopkinton district school[;] 2. All records management systems’ electronic sign-on sheets (i.e., those containing electronic signature pages) for those records responsive to paragraph 1., above. Examples of records management systems used by first responders’ departments include but are not limited to the Detail Tracking System (“DTS”), ProPhoenix, Power DMS, Power Engage; such tools can be used by first responders to track employees’ acknowledgment of their respective receipt of a specific item. I know that the Town of Hopkinton uses at least two of the aforementioned management tools (DTS and ProPhoenix)[;] 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

Connor Degan SPR24/3463 Page 2 January 7, 2025 3. All Power Points, Key Notes, Google Slides, Google Docs, or other instructional, tutorial, and/or training records used by the Town to train, explain, or interpret any one or more of the records responsive to paragraph 1., above[;] 4. Between January 1, 2020 and today’s date: All emails sent by or received from any of the listed Town of Hopkinton employees (listed below) that have at least one of those responsive protocols or policies (i.e., responsive to paragraph 1., above) attached to the subject email. Petition to Assess Fees – Municipalities The Supervisor of Records (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. 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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,

Connor Degan SPR24/3463 Page 3 January 7, 2025 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 Petition In its petition, in addition to charging for segregation and redaction required by law under Exemption (a), the Department argues the following in support of its request to charge for segregation and redaction under Exemption (n): The request includes emails, policies, procedures, and trainings relating to the Town’s security measures for active shooters or other threats in Town. These records may contain security information that, if released, is likely to jeopardize public safety. Indeed, given the nature of the request – for emergency response records concerning active shooter responses – it is likely that some of the information contained in these records would be protected from disclosure under Exemption (n) to the Public Records Law. In light of the Town’s petition, I find the Town has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the Town to provide records in an efficient and affordable manner. Please note, Mr. Snow 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).

Connor Degan SPR24/3463 Page 4 January 7, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Steve Snow Bryan F. Bertram, Esq.