John Barrella v. Middleborough, Town of - Office of the Town Clerk (SPR 20251321)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 21, 2025 SPR25/1321 Pamela Menconi Town Clerk Town of Middleborough 20 Centre Street, First Floor Middleborough, MA 02346 Dear Ms. Menconi: I have received the petition of John Barrella appealing the response of the Town of Middleborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 11, 2025, Mr. Barrella requested: [1] [A]ll origination, holding and destination sources by account, journal entry or otherwise, regarding any and all retained earnings funds held, moved, transferred or otherwise processed from the time period of 2022 up to, but not limited to; the filing date of this request, April 11, 2025. Please include any and all transactions dates, amounts and names. Please explain when and where this data and any related activities was previously made publicly available. Please reference the chart, attached. [2] [A] detailed list of all Town borrowed amounts up to but not limited to; $36,979,156. Please include line-level amounts involved, itemized, cite authority under which each and every transaction was, how and by whom approved. Please include for what purpose the debt was assumed and the reasons why it exists. Please explain when and where this debt and any related activities were previously made publicly available. Please reference the attached charts, as provided by town employees. Please reference chart, attached. The Town responded on April 28, 2025. Unsatisfied with the Town’s response, Mr. Barrella petitioned this office and this appeal, SPR25/1321, was opened as a result. 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

Pamela Menconi SPR25/1321 Page 2 May 21, 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, § 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 (two) 2 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 April 28th Response Item 1 – Reasonableness of the Fee Estimate

Pamela Menconi SPR25/1321 Page 3 May 21, 2025 In its April 28, 2025 response, the Town assessed a fee of $325.00 to provide Mr. Barrella with records responsive to Item 1 of the request. The Town detailed its fee estimate as follows: It is estimated that it will cost a total of $325.00 to comply with [Item 1 of the Request]. This estimate is based on the hourly rate of the lowest paid person capable of searching for the responsive records, in accordance with 950 CMR 32.07(2)(i). Such hourly rate shall not exceed $25.00 per hour unless otherwise authorized by the Supervisor of Records. This hourly rate is applied to the estimated amount of time it will take to complete the work. With regard to [Item 1], the information sought is stored only in physical files. Each of these files must be reviewed to determine what documents are responsive and any responsive documents found will have to be scanned into pdf. format. It is estimated that it will take at least 15 hours to complete this work. Where the lowest paid employees capable of doing this work are paid at rates of more than $25.00 per hour, you will be charged at the maximum rate of $25.00 per hour. Please note that at the last Decennial U.S. Census the Town had a population of 24,245 and because the Town has more than 20,000 residents you will not be charged for the first two hours of work associated with this request. Although the Town has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 15 hours of employee time, the Town has not provided sufficient explanation of why 15 hours of employee time is necessary. Specifically, the Town must clarify how many hours it requires to search for records and how many hours it requires to review records for responsiveness. The Town must also provide additional information regarding the tasks involved in producing the responsive records. For the reason discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee of $325.00 assessed in its April 28th estimate is consistent with G. L. c. 66, § 10(d). Item 2 – Breadth of the Request Regarding Item 2 of the request, the Town stated: The Town is currently unable to provide responsive records or commence a good faith estimate of time to respond to [Item 2 of the request]. [Item 2] is essentially seeking material on all Town borrowings since the Town’s inception and it is unclear what information you are seeking. Pursuant to G.L. c. 66, §10(a)(i) and 950 CMR §32.06(1)(b), a public records request must “include a reasonable description of the requested record to the records access officer so that the records can be identified and located promptly.” Given the limitless scope of your request, it does not provide a reasonable description of the records sought and it cannot be responded to in its current form. Please feel free to contact me if you wish to

Pamela Menconi SPR25/1321 Page 4 May 21, 2025 clarify or narrow the scope of your request, by for example providing a narrower timeline, and a revised response will be provided. If you do not wish to revise your request, it must be denied. Based on a review of Item 2 of Mr. Barrella’s request, this office finds that his request is very broad in scope. Please be advised, 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; (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. Barrella and the Town to continue communicating 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).

Pamela Menconi SPR25/1321 Page 5 May 21, 2025 Conclusion Accordingly, the Town is ordered to provide Mr. Barrella with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Mr. Barrella may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: John Barrella Sue Nickerson