Ada Zhong v. Westwood, Town of - Clerk's Office (SPR 20251182)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 6, 2025 SPR25/1182 Dorothy A. Powers Town Clerk Town of Westwood Town Hall 580 High Street Westwood, MA 02090 Dear Ms. Powers: On April 29, 2025, this office received your petition on behalf of the Town of Westwood (Town) seeking an extension of time to produce records, a waiver of statutory limits on fees that may be assessed in responding to the request, and relief from the obligation to produce 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, I understand that the Town furnished a copy of this petition to the requestor, Ada Zhong. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). From March 20, 2025 through April 24, 2025, Ms. Zhong submitted approximately 29 requests, summarized by the Town as follows: (1) 3/20/25 Request for real estate tax revenue figures from FY2010 through FY2024; (2) 3/25/25 Request for copy of contract with Vertex (OPM for the Fire Station 1 project) (3) 3/24/25 Request asking “how much could Westwood save annually by including a maintenance bay in the new fire station; please provide an estimate based on current repair expenses, including labor, parts and outsourcing costs; how much will it cost Westwood to build a maintenance bay, attached or detached….; (4) 3/27/25 Request for floor plan for the Islington Fire Station 1; (5) 3/27/25 Request for report on the top taxpayers for the years 2015 through 2024; (6) 3/27/25 Request for FY2024 payroll, including name, title, salary, full time or part time; (7) 3/28/25 Request to review all records of the Board of Assessors for 2024; (8) 3/31/25 Request for list of Fire Department staff, including names, titles and e-mail addresses, with request to post the information on the Town website 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

Dorothy A. Powers SPR25/1182 Page 2 May 6, 2025 (9) 4/3/25 Request for copy of the OPM contract for Pill Hill School, the test report following Thurston’s sewage pipe issue; (10) 4/9/25 Request for all communications, including but not limited to e-mails, letters, memos, notes or other documents between Town Counsel . . . and Special Counsel . . . ; (11) 4/10/25 Refined Request for access to Board of Assessors records asking for categories of records held by the Board of Assessors; (12) 4/11/25 Request to examine all records of the Board of Assessors for 2023 in person and requesting a 30 minute appointment; (13) 4/11/25 Request to examine all records of the Westwood Public Works Department for Fiscal Year 2024 in person, and requesting a 30 minute appointment; (14) 4/11/25 Request to examine all records of the Westwood Town Clerk Office for Fiscal Year 2024 in person, and requesting a 30 minute appointment; (15) 4/11/25 Request for Fire Department incident statistic monthly reports from 2022 and 2024; (16) 4/11/25 Request to examine all records of the Westwood Fire Department for Fiscal Year 2024 in person, and requesting a 30 minute appointment; (17) 4/11/25 Request to examine all records of the Westwood IT Department for Fiscal Year 2024 in person, and requesting a 30 minute appointment; (18) 4/11/25 Request to examine all records of the Westwood Finance Department for Fiscal Year 2024 in person, and requesting a 30 minute appointment; (19) Request to examine all records of the Westwood Human Resources Department for Fiscal Year 2024 in person, and requesting a 30 minute appointment; (20) 4/11/25 Request to Finance Department for information on the Hotel and Meals Tax; (21) 4/11 Request incident statistic monthly reports for year of 2022 and 2024. (22) 4/15/25 Request to Community and Economic Development Department for clarification regarding zoning amendments at the Planning Board Public Hearing; (23) 4/15/25 Request to Town Counsel and Town Planner for clarification regarding zoning amendments at the Planning Board Public Hearing; (24) 4/16/25 Request to Town Clerk and Human Resources Department for information about “concerned resident”, including e-mails, text messages and social media messages; (25) 4/16/25 Request to Community and Economic Development Department for Planning Board member e-mail addresses; and (26) 4/17/25 Request to Select Board and Town Administrator regarding the origin of all proposed Select Board articles recommended to 2025 annual town meeting. (27) 4/17/25 Request any documentation that includes itemized costs associated with the project as a follow up to prior FS1 request. (28) 4/18/25 Request the email addresses of the FinCom members so I can reach out to them directly with any specific budget-related questions?

Dorothy A. Powers SPR25/1182 Page 3 May 6, 2025 (29) 4/24/25 Request public records related to the Fiscal Year 2025 Tax Classification Hearing held on November 18, 2024, including, but not limited to, meeting minutes, agenda, and presentation materials. Petitions for an Extension of Time and to be Relieved from the Obligation to Provide Records 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) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(b). Request for Relief In its petition, the Town “submits that there is good cause for relieving the Town of any obligation to respond to the Requester’s continued unreasonable requests for records, from providing estimates for the cost to comply with, or to provide copies of, the records sought.” In support of its request for relief, the Town argues the following: Specifically, as outlined in detail below, the Town has responded to 29 requests from the Requester since March 20, 2025. ... The Town has responded to all requests in good faith in compliance with the provisions of the Public Records

Dorothy A. Powers SPR25/1182 Page 4 May 6, 2025 Law. Despite its good faith efforts, the Requestor nevertheless continues to submit multiple new requests while simultaneously criticizing the diligent work being done to respond to the requests and maligning Town officials in writing and at open meetings. Moreover, it appears that the Requester fundamentally misunderstands the Public Records Law, demanding ½ hour meetings with staff, asking questions about the Town’s responses to her requests, and requesting that Town officials “google” particular phrases. While these issues may, separately, not appear to be overly burdensome, the significant frequency and voluminous scope of these requests, coupled with the unwarranted mistreatment of Town officials, has created a very difficult situation for Town officials and detrimentally impacted their ability to perform other functions of their municipal responsibilities. Importantly, the Requester has also driven to the offices of, and e-mailed, Vertex, the Town’s Owner’s Project Manager on its Fire Station 1 project, without permission and, in fact, in direct contravention of specific direction from the Town. These facts, taken together, have ratcheted up concerns about the intent of her public records requests and related correspondence, and the concerns it has created for Town employees. The Town, preparing for Town Meeting, operating other Town programs and functions, and with minimal staff due to strained finances, has limited public resources with which to address these overbroad and harassing e-mails, including four e-mails sent on Friday, April 18, 2025 alone. . . . Based on the timing, sheer number, and nature of the requests, in conjunction with the Requestor’s escalating correspondence and actions, it is clear that the requests are designed solely to intimidate or harass public officials and are not intended to disseminate information to the public about actual governmental activity. The Town, therefore, submits that the Supervisor should decline the appeal under SPR 25-1000, and, further, grant the Town relief from the requirement to respond to any currently pending requests or future duplicative requests and/or to extend the time to respond to any future requests which are duplicative of past requests, and/or to waive the statutory limits on fees that may be assessed to respond to any future requests. The public interest strongly supports the Town’s request for relief. . . . The Requester has sent at least 21 requests so far this month, in addition to 8 requests last month. . . . Any interaction with the Requester is quickly followed by a request for records concerning the matters discussed or e-mail response Based on the information provided in the Town’s petition, I find that the Town has not demonstrated that the requests are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c). Consequently, I am unable to grant the Town’s request for relief.

Dorothy A. Powers SPR25/1182 Page 5 May 6, 2025 Request for Additional Time to Produce Responsive Records In its petition, the Town requests an extension of 30 business days and provides the following information in support of its request: Notwithstanding the tone and significant volume of the requests and related correspondence, the Town has responded to each of the above requests in good faith and in accordance with the Public Records Law and regulations, well in advance of the 10-business day period to which it is entitled by law. The Town has provided the Requester with relevant records when they have been appropriately described, and has provided a fee estimate in response to only one request. The Town has further assisted the Requester, even when providing her with requested records, by directing her to relevant information on the Town’s website. A log with each of these elements identified is attached [to the Town’s petition]. While not required by the Public Records Law, the Town has also responded to various questions the Requester has asked, including questions about the application of the Public Records Law and the Town’s obligations thereunder. . . . The request underlying SPR 25-1000, the request for copies of all records of the office of the Board of Assessors for Fiscal Year 2024, is inherently, unreasonable, and one of 10 similar requests. See Paragraphs 7, and 12-18. The Town is simply not capable of preparing an estimate of the cost to make available, or to make copies of, all of the records of the Assessing Department, let alone all of the listed departments. Moreover, it is impossible to “sort” the requested records in the manner identified by the Requester. Town records are simply not labeled by fiscal year. Further, there is no way to comply with the request – the sheer volume of potentially responsive records cannot be quantified. Finally, the staff time needed to even try to prepare such an estimate, and then allow for inspection of the records, would eviscerate the Town’s ability to undertake its daily operations providing services to members of the public. The work the Town would need to respond to such a request is detrimental to the functioning of Town services and clearly unreasonable. Indeed, the Town’s ongoing good faith efforts to handle the multitude of requests from the Requester, while still attending to its other pressing municipal responsibilities, are met only by more and more requests, and correspondence arguing that the Town’s responses are unlawful or inadequate. At this juncture, it is the Town’s position that the Requestor is being patently unreasonable, creating an adversarial setting and abusing the Public Records Law and the Public Records Access Regulations to the clear detriment of the Town. Such burdens are simply not contemplated by the Public Records Law, and cannot be administered consistent with its other statutory obligations. Therefore, the Town must be excused from any obligation to respond to the current requests and any future requests. Friedman v. Division of Administrative Law Appeals, 103 Mass. App. Ct. 806, 807 (2024) (stating, “[T]he public records law does not require public

Dorothy A. Powers SPR25/1182 Page 6 May 6, 2025 agencies simply to provide the requested records no matter the burden imposed, nor does it require public agencies to shunt aside their principal public functions to do so.”) Further, despite the onslaught of requests, the Town continues to respond in good faith, patiently explaining that certain requests are overbroad, or questions, or requests for information that does not exist. The Requestor, however, refuses to assist the Town by utilizing the Town’s records request portal, which portal allows the Town to direct requests to appropriate personnel, track the date of the request, calendar the last day to respond, and record the date on which a response is sent. Moreover, when the Town responds to questions or requests from the Requestor, whether in person at public meetings, or by e-mail or by telephone, new public records requests are subsequently filed in an apparent attempt to tease out alleged motivations, which are not present. For example, on Friday, April 18, 2025, the Town Clerk received three e-mails from the Requester, and the Assistant Town Administrator received one e-mail, each complaining about the fact that the Requester’s public records requests have been entered into the Town’s public records request administration system, and asking the Town Clerk and Assistant Town Administrator to google specific questions. . . . The Town Attorney responded to an e-mail from the Requester, and she, in turn, e-mailed again requesting further clarification. In this case, the Town submitted its petition on April 29, 2025, more than twenty business days after receipt of requests 1 through 7. In light of the fact the Town has not demonstrated it submitted a timely petition for requests 1 through 7, an extension of time cannot be granted for those requests. 950 C.M.R. 32.06(4)(d). To the extent possible, records responsive to those requests must be provided on a rolling basis. With regard to requests 8 through 29, I find that in light of the need to search for, collect, segregate and examine the records, the capacity of the Town to produce the request without the extension, and efforts undertaken by the Town in fulfilling the current requests and previous requests, the Town has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The Town is granted an extension of 30 business days for requests 8 through 29. 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

Dorothy A. Powers SPR25/1182 Page 7 May 6, 2025 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, 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 in Excess of $25.00 per Hour In its petition, the Town requests the following concerning its request to charge a fee in excess of $25.00 per hour: Allow the Town to charge the actual cost of responding to the requests, i.e., to charge the hourly rate of the lowest paid person capable of responding to the request and $75.00/hour for work that needs to be conducted by the Town Attorney relative to any privilege review, rather than the otherwise applicable $25.00 limit

Dorothy A. Powers SPR25/1182 Page 8 May 6, 2025 The Town submitted its petition on April 29, 2025, more than ten business days after receipt of requests 1 through 21. In light of the fact the Town has not demonstrated it submitted a timely petition for requests 1 through 21, permission to charge a fee in excess of $25 per hour cannot be granted for those requests. 950 C.M.R. 32.06(4)(g). With regard to request 22 through 29, I find the Town has met its burden to explain how, given the nature of the responsive records, those 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). I find the Town may assess a fee limited to $75.00 per hour for attorney review for requests 22 through 29. Matters Outside Scope of Authority In its appeal petition, the Town also requests that this office “authorize the Town to require the requester to submit all requests weekly, rather than on several days each week.” The Town is advised that while a requestor may not divide a request into multiple parts in order to circumvent the fees allowed by the Public Records Law, the Town’s request to have the requestor submit requests weekly is beyond the authority of this office. Additionally, the Town requests that this office “authorize the Town to require the requester to submit all requests using the Town’s public records portal.” Please be advised that pursuant to 950 C.M.R. 32.06, “requests for public records may be made orally in person to a records access officer or custodian or may be written. . . . [W]ritten requests may be delivered by a requester to the business address or designated website or email address of a records access officer or custodian: 1. by hand; 2. by mail; 3. by electronic mail; or 4. by facsimile, if custodian has facsimile access.” See 950 C.M.R. 32.06(a), (c). Further, “a records access officer shall not require a particular form be used by requesters, but may make forms available for requesters.” See 950 C.M.R. 32.06(d). Accordingly, in requesting that this office require Ms. Zhong to use the Town’s portal to submit public records requests, the Town requests relief outside the scope of statutory authority given to the Supervisor under the Public Records Law. See G. L. c. 66, § 10(d)(iii), (iv); 950 C.M.R. 32.06(4). Conclusion Accordingly, I find the Town has established good cause for a time extension of 30 business days for requests 8 through 29, as described above. Additionally, as described above, the Town may assess a fee limited to $75.00 per hour for attorney review of requests 22-29. This office encourages Ms. Zhong and the Town 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 to 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 records sought more efficiently and affordably). Any subsequent fee estimate from the Town must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Ms. Zhong has the right to seek judicial review of this decision by

Dorothy A. Powers SPR25/1182 Page 9 May 6, 2025 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: Ada Zhong