Alan DiPietro v. Bolton, Town of - Office of the Town Clerk (SPR 20250582)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 12, 2025 SPR25/0582 Jennifer Marquis Town Clerk Town of Bolton 663 Main Street Bolton, MA 01740 Dear Ms. Marquis: I have received the petition of Alan DiPietro appealing the response of the Town of Bolton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 7, 2025, Mr. DiPietro requested the following: [C]opies of the following records relative to the Town Ordered Auction of land parcels Wednesday, October 23, 2024 [1] Any and all documentation establishing the values of the seven properties prior to the auction, - including the assessed values for tax purposes - and any appraisals and email etc interaction with appraisers or potential appraisers of the seven properties. [2] Please provide all Correspondence with appraiser(s) - Solicitation letter RFP etc. - Contract - Related correspondence with any appraisers not ultimately chosen [3] Please provide all Correspondence with auction house(s) - Solicitation letter RFP etc. - Contract - Information: verbiage, documents and/or links to docs. provided for marketing and advertising purposes - Related correspondence with any auction houses not ultimately chosen [4] Please provide the tax title / agency fund calculations for the amounts owed against the seven properties - the determinations of any surplus(es) from the sale of the 7 properties, clearly itemizing all the expenses related to the acquisition, maintenance, 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

Jennifer Marquis SPR25/0582 Page 2 March 12, 2025 and sale, the Town of Bolton used to determined the amounts considered surplus and placed in agency account(s) . . . [5] Please provide correspondence with the previous owners in regards to: - The auction announcement and date - The auction results - The accounting of sales proceeds and distribution of funds. - All documentation sent to the previous owners relative to these surpluses and their right to claim said surpluses in the agency funds. [6] Please provide correspondence with any: - Others requesting or receiving a share of the sales proceeds [7] Please provide all records of efforts to maximize the sale prices of the properties via advertising, engineering work or otherwise: [8] Please provide all emails etc between town boards committees employees and agents relative to the sale of these 7 properties. [9] Please provide any records relative to the decision to sell each parcel individually as opposed to grouping multiple contiguous or collocated parcels to maximize the sales proceeds. [10] Please provide all records regarding verbiage, documents and/or links to docs. as used to advertise these properties and the auction. [11] Please provide Correspondence with any engineering or other firms(s) relative to the 7 properties and their preparation for sale. - Solicitation letter RFP etc. - Contract - PERC Tests and any other engineering work and deliverables created in preparation for sale of each of the 7 parcels including fees paid - Related correspondence with any engineering or other firms not ultimately chosen [12] Please provide any and all records of the actual auction of the 7 properties including: - Any audio or video recording or meeting minutes/notes of the auction - List of registered bidders[.] The Town responded on February 24, 2025, providing a fee estimate. Objecting to the fees, Mr. DiPietro petitioned this office, and this appeal, SPR25/0582, was opened as a result. Subsequent to the opening of this appeal, the Town provided a further response to this office and Mr. DiPietro on March 10, 2025. 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,

Jennifer Marquis SPR25/0582 Page 3 March 12, 2025 § 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 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). 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 February 24th Fee Estimate and March 10th Response In its February 24, 2025 response, the Town provides a total fee estimate of $262.50. In support of its fee estimate, the Town provides the following information: IT Vendor: The Town’s IT vendor has estimated 7 hours to search for and compile emails that may be responsive this request. Please provide the exact search terms to utilize to conduct the email search. The lowest paid employee of the Town’s IT vendor capable of searching for and compiling emails that may be responsive to this request bill the Town at a rate of $90 per hour. Therefore, the Town’s good faith

Jennifer Marquis SPR25/0582 Page 4 March 12, 2025 estimate for this portion of the request is based upon the statutory maximum of $25 per hour. Seven hours at $25 per hour: subtotal $175. Town Counsel: Town Counsel has estimated 1.5 hours to search for and compile emails and other records that may be responsive this request, based upon the search terms provided. The lowest paid employee of Town Counsel’s office capable of searching for and compiling emails and other records that may be responsive to this request bill the Town at a rate of $215 per hour. Therefore, the Town’s good faith estimate for this portion of the request is based upon the statutory maximum of $25 per hour. 1.5 hours at $25 per hour: subtotal $37.50. Town Administrator: The Town Administrator’s Office has estimated 1 hour to search for and compile records that may be responsive this request, based upon the search terms provided. The lowest paid employee of the Town Administrator’s Office capable of searching for and compiling emails that may be responsive to this request is paid at a rate of $29.73 per hour. Therefore, the Town’s good faith estimate for this portion of the request is based upon the statutory maximum of $25 per hour. One hours at $25 per hour: subtotal $25.00. Town Treasurer: The Town Treasurer’s Office has estimated 1 hour to search for and compile emails and other records that may be responsive this request, based upon the search terms provided. The lowest paid employee of the Town Planner’s Office capable of searching for and compiling emails that may be responsive to this request is paid at a rate of $25.00 per hour. Therefore, the Town’s good faith estimate for this portion of the request is based upon the statutory maximum of $25 per hour. 1 hour at $25 per hour: subtotal $25.00. Total Initial Good Faith Estimate: Based upon the information provided above, the total initial good faith estimate for the Town to respond to this request is $262.50. In accordance with 950 CMR 32.07(2)(m), this initial good faith estimate includes the first 2 hours of time devoted to complying with this request as the Town had a population under 20,000 residents in the 2020 US Census.

Jennifer Marquis SPR25/0582 Page 5 March 12, 2025 The Town goes on to explain that if Mr. DiPietro “would like to modify or narrow the scope of this request, the Town will issue a new response and good faith estimate.” In its March 10th response, the Town further explains the following: If Mr. DiPietro could provide a date range for qualifying records, that may help reduce our effort and thus reduce our cost. ... We have requested key terms to best fulfill Mr. DiPietro’s request, and to limit the time and effort required. If no key terms are required/provided, we will need to revisit our estimate. ... Mr. DiPietro is seeking information from ‘all board and committee members’ regarding these properties, with no limit on time frame (presumably relative to their sale at the auction held October 2024), and no key terms to assist us in identifying qualifying records. Current Appeal In his appeal petition, Mr. DiPietro argues the following: The Town’s response does not lend itself to narrowing other than eliminating all email requests. Much of the requested information could have been provided already; it has nothing to do with email or “search terms” or outside IT vendors; they are documents created and stored by the Town Treasurer along with her interactions related to the auctions she oversaw. If the Town Counsel, Town Administrator and Town Treasure of Bolton each spent the time estimated in their attached response, this request would have been completed already in under 4 hours. I’m confident that they could each search their own emails without 7 hours of outside IT assistance. Appropriate Definitions, Parameters, and Time Frames In Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1.

Jennifer Marquis SPR25/0582 Page 6 March 12, 2025 The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents; (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. This office encourages Mr. DiPietro and the Town to communicate directly in order to facilitate providing records more efficiently and affordably. Mr. DiPietro may consider narrowing the scope of his request to enable the Town to provide the records more efficiently and affordably. The Town must use its superior knowledge of the records to suggest any potential reasonable modifications to the request. See G. L. c. 66, § 10(b)(vii) (a municipality 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 to produce the records sought more efficiently and affordably). Conclusion If outstanding issues remain after Mr. DiPietro and the Town communicate further as described above, Mr. DiPietro may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Alan DiPietro