John Bacon v. Holbrook, Town of - Town Administrator (SPR 20250852)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 28, 2025 SPR25/0852 Anne Mahoney Assistant Town Administrator Town of Holbrook 50 North Franklin Street Holbrook, MA 02343 Dear Ms. Mahoney: On March 28, 2024, this office received the petition of Yuqing “Walter” Zhang, Esq., of Murphy, Hesse, Toomey & Lehane, LLP, on behalf of the Town of Holbrook (Town) seeking an extension of time to produce records and 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, John E. Bacon, Esq., G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 20, 2025, Attorney Bacon requested: [1] Any records related to the presence or threat posed by methane gas at or near the former Landfill from any source, including without limitation, any reports of tests, inspections or investigations; [2] Any record of verbal or written communications to or from the Town of Holbrook regarding the presence or threat posed by methane gas at or near the Landfill; [3] Any record of verbal or written communications among or between Town of Holbrook elected officials, employees, agents, representatives, or third parties regarding the presence or threat posed by methane gas at or near the Landfill, including, without limitation, any potential threats or impacts on abutting properties; [4] Any record of verbal or written communications among or between Town of Holbrook elected officials, employees, agents, representatives, or third parties regarding the current status of the Landfill, including but not limited to compliance with closure procedures and any proposed plans for redevelopment of 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

Anne Mahoney SPR25/0852 Page 2 March 28, 2025 the Landfill and/or related to the property located at 29 Maple Street, Holbrook and all other properties abutting the Landfill. It is my understanding that the Town received the request on February 24, 2025. 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; (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). Request for Additional Time to Produce Responsive Records In its petition, the Town requests an extension of 30 business days. 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

Anne Mahoney SPR25/0852 Page 3 March 28, 2025 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; 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). 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).

Anne Mahoney SPR25/0852 Page 4 March 28, 2025 Petition to Assess Fees In its petition, the Town requests to charge fees for segregation and redaction of the responsive records. Conclusion The Town submitted its petition on March 28, 2025, more than twenty business days after receipt of the request. In light of the fact that the Town has not demonstrated it submitted a timely petition, an extension of time cannot be granted. 950 C.M.R. 32.06(4)(d). Additionally, where the Town has not demonstrated that it submitted its fee petition within ten business days after receipt of the request, permission to charge for segregation or redaction that is not required by law cannot be granted. 950 C.M.R. 32.06(4)(g). Please note, however, this determination does not preclude the Town from charging for segregation and redaction that is required by law. Sincerely, Manza Arthur Supervisor of Records cc: John E. Bacon, Esq. Yuqing “Walter” Zhang, Esq.