Carey Goldberg v. Brookline, Town of - Town Counsel (SPR 20251039)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2025 SPR25/1039 Ben Kaufman Town Clerk Town of Brookline 333 Washington Street Brookline, MA 02445 I have received the petition of Carey Goldberg appealing the response of the Town of Brookline (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 29, 2024, Ms. Goldberg requested the following: [C]opies of any and all texts, emails, and other written correspondence to or from [the] Brookline Public Schools Superintendent ... pertaining to or relating in any way to the written statements that were published or caused to be published by or on behalf of [the] Superintendent ... from Oct. 7 through Oct. 14, 2023, in response to and following the October 7, 2023 Hamas attack on Israel. Previous Appeals This request was the subject of previous appeals. See SPR24/1811 Determination of the Supervisor of Records (July 5, 2024); SPR24/2164 Determination of the Supervisor of Records (August 13, 2024) and SPR24/2525 Determination of the Supervisor of Records (September 20, 2024). In my September 20th determination, I ordered the Town to clarify whether it possessed additional records responsive to the request, and found that the Town had not met its burden of specificity for redacting records. Subsequently, on January 7, 2025, Ms. Goldberg modified her request as follows: 1. Search terms: (Quite a few terms here but presume this can be done in just one search, using an “or” between them.) Israel, Israeli, Palestine, Palestinian, Middle, East, Jew, Jews, Jewish, Hamas, resources, violence, terror, message, statement, community, decolonize, social, studies, colonial, Islam, Islamic, Muslim, Arab, genocide, liberation, resistance, indigenous, settler, imperialism, zionism, colonialism, conflict, perception, harm, action, white, 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

Ben Kaufman SPR25/1039 Page 2 April 30, 2025 oppressor, oppressed, resistance, apartheid, social justice, supremacy, war, Oct. 7, October, 10/7, death, Gaza, West Bank, Occupation, Netanyahu 2. Also: All communications that week to or from [a list of three specified] staff members[.] 3. Access to the Google doc that is the sole document the town has provided, so that comments and edits will be visible. ... On January 10, 2025, Ms. Goldberg further modified her request as follows:: 1. I will remove many of the general search terms I proposed, which should reduce the number of potentially responsive emails significantly. The only search terms I would propose are: Israel, Israeli, Gaza, Palestine, Palestinian, Middle East, Mideast, Jew, Jews, Jewish, Hamas, violence, terror, message, statement, decolonize, Islamist, Islamic, Muslim, Arab, resistance, zionism, colonialism, conflict, social justice, Oct. 7, October 7, 10/7, occupation. I would also like to add the message headline “supporting our students.” 2. I withdraw my request for communications to and from those specific staff members. 3. With respect to the Google doc, I am clarifying that I don’t seek “live access” to the district’s computer system or network. Rather, I am seeking a full copy (presumably exported or downloaded) and the document’s corresponding audit log. 4. I am also reiterating the Supervisor of Records’ consistent requirement that the specific grounds for any redactions to this document must be disclosed. I don’t believe the Town has taken the position that the Google doc is not a public record, especially considering that the public records law includes any information created or received by a public entity, regardless of the format. 5. Moreover, to further reduce the number of potentially responsive emails, I am willing to narrow the date range to 10/7 through 10/11 inclusive (rather than through 10/14). And, for clarification, my request is limited to emails sent to, received from, or copying the superintendent. Following further correspondence between the Town and Ms. Goldberg, the Town responded on January 24, 2025, providing a fee estimate, and I understand that on March 21, 2025, Ms. Goldberg paid the fees. Subsequently, the Town responded on April 4, 2025, providing numerous responsive records. Unsatisfied with the Town’s response, Ms. Goldberg petitioned this office, and this appeal, SPR25/1039, was opened as a result. Subsequent to the opening of this appeal, the Town provided further responses, including additional responsive records, on April 18, and April 25, 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

Ben Kaufman SPR25/1039 Page 3 April 30, 2025 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, § 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). Fee Waivers In her appeal petition, Ms. Goldberg states the following: Multiple people have now informed me that the charge of $926.25 for 368 potentially responsive emails appears exorbitant. I paid it because this has all gone on far too long, but the emails provided are extremely duplicative, making the charge seem even more exorbitant. I am wondering whether it is possible to appeal this charge after the fact, and ask for the town to refund some of the 926.25

Ben Kaufman SPR25/1039 Page 4 April 30, 2025 I paid. In an email to this office on April 15, 2025, Ms. Goldberg further argues the following: I asked if it might be possible to appeal the $926.25 charge, because now that I’ve seen how many duplications there are in the emails, the price seems truly outrageous. If you could let me know at some point whether that’s procedurally possible, I would be very grateful. Please be advised that G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. G. L. c. 66, § 10(d)(v). Additionally, please note that, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). In this case, where it appears Ms. Goldberg has paid the fees, and the Town has been providing records on a rolling basis, I am unable to assist Ms. Goldberg in regard to this aspect of her appeal petition. The Town’s Responses In its January 24, 2025 response, the Town provided a total fee estimate of $926.25, and states the following: We found 368 potentially responsive emails with a file size of more than 49.4 MB that we estimate to be more than 1,482 pages of documents. We estimate that Town staff would need at least 39.1 hours of time to review and segregate the documents for responsiveness and segregation for the responsive documents. In its April 4, 2025 response, the Town provided numerous responsive records totaling approximately 500 pages; in its April 18, 2025 response, the Town provided additional responsive records totaling approximately 300 pages; and in its April 25, 2025 response, the Town provided further additional records totaling approximately 200 pages. In all three

Ben Kaufman SPR25/1039 Page 5 April 30, 2025 responses, the Town stated the following: I wanted to assure you of our commitment to producing the records responsive to your request. ... The remaining are forthcoming and will be produced to you on a rolling basis. Current Appeal In her appeal petition, Ms. Goldberg argues the following: [O]n 3/21/25 I paid $926.25 to the town of Brookline for the emails that I have been seeking since October of 2023. On 4/4/25, the town conveyed an initial set of emails ... but acknowledged that this was not the complete set. Among other omissions, it does not contain the Google doc that we have previously discussed. I have heard nothing from the town since 4/4. My query as to when I can expect the rest of the emails has gone unanswered. I never agreed to receive the emails on “a rolling basis,” the rest of the emails are overdue, and I am asking the Supervisor’s office to determine that they need to be delivered forthwith. 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. 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;

Ben Kaufman SPR25/1039 Page 6 April 30, 2025 (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 Ms. Goldberg and the Town to continue to communicate directly in order to facilitate providing records more efficiently and affordably. 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). To the extent possible, the Town must continue providing records on a rolling basis. Conclusion Accordingly, the Town is ordered to provide Ms. Goldberg with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Ms. Goldberg may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Carey Goldberg Jeremie Morson, Paralegal Joseph Callanan, Esq.