Holly McNamara v. Somerset, Town of - Town Clerk (SPR 20251791)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 30, 2025 SPR25/1791 Caitlin Hadala Town Clerk Town of Somerset 140 Wood Street Somerset, MA 02726 Dear Ms. Hadala: On June 23, 2025, this office received your petition on behalf of the Town of Somerset (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, Holly McNamara. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 6, 2025, Ms. McNamara requested “an archive of all of [her] former town emails.” Petitions for an Extension of Time and Relief 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. 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

Caitlin Hadala SPR25/1791 Page 2 June 30, 2025 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 Additional Time and Relief from the Obligation to Produce Responsive Records In its petition, the Town “requests that the Supervisor of Records relieve it of its obligation to respond to this request,” and “in the alternative, the Town requests that the Supervisor authorize an extension of time of an additional thirty business days.” The Town provides the following information in support of its request: The Town is in receipt of a public records request from Ms. Holly McNamara for a copy of all of the e-mails she sent or received while she was a Select Board member in Town, a position she held from May 9th, 2016 to April 14, 2021. . . . Here, based on the Town’s initial good faith work on this request, it appears that there are nearly 20,000 records that may be responsive to the request. Where Ms. McNamara is no longer a Select Board member, those records may include attorney-client privileged or other collective bargaining, litigation strategy or confidential information not otherwise available to the public, including executive session materials. The Town cannot responsibly disclose these records without reviewing the same. Such a request is therefore inherently unreasonable. . . . In addition to its initial response to the Requester, the Town herein petitions to be relieved from responding to this frivolous request due to it being unreasonably broad and overly vague. G.L. c. 66, § 10, and 950 CMR 32.00 et seq. The Town is simply not capable of preparing an estimate of the cost to make these available, or to make copies of all of the requested records. The staff time needed to even try to prepare such an estimate, and then allow for inspection of the records, would severely impact 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. Further, the requests are clearly not for the broad dissemination to the public about actual or alleged government activity where the Requester is seeking e-mails to or from herself. G.L. c. 66, § 10(c). Therefore, the Town must be excused from any obligation to provide a further response to this frivolous and massive request.

Caitlin Hadala SPR25/1791 Page 3 June 30, 2025 I find that in light of the need to search for, collect, segregate and examine the records, the scope of redaction required to prevent unlawful disclosure, the capacity of the Town to produce the request without the extension, efforts undertaken by the Town in fulfilling the current request, 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. Additionally, based on the information provided in the Town’s petition, I find that the Town has not demonstrated that the request is 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, relief from the obligation to provide responsive records cannot be granted. 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 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).

Caitlin Hadala SPR25/1791 Page 4 June 30, 2025 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 “as appropriate a waiver of statutory limits on fees that may be assessed in connection with responding to said requests.” The Town states the following concerning its request to charge a fee in excess of $25.00 per hour: If the Town is required to produce records, it respectfully requests the ability to charge in excess of $25 per hour. . . . In this instance, based on the Town’s initial review of this request, which seeks any and all communications sent to or from a former Select Board member, it is anticipated that many responsive records may relate to matters for which Town Counsel has been involved relating to the attorney-client relationship, as well as executive session material pursuant to the Open Meeting Law, G.L. c. 30A, protected by Exemption (a) of the Public Records Law. The Town therefore respectfully requests the ability to charge $75.00/hour for Town Counsel’s time. Without an adjustment in the statutory rate, the Town will incur significant financial cost if it is required to pay its attorney the full Town Counsel rate to respond to this request which implicates confidential privileged matters. As grounds for this Petition, therefore, the Town states that there is good cause for permitting the Town to charge the . . . cost estimate because Town Counsel is the lowest paid employee capable of reviewing all such records for necessary redactions for attorney-client privilege, attorney-client work product, and other related legal and policy considerations. Accord SPR 22/2793 (approving fee estimate where attorney was only employee “with the necessary skill to determine whether the attorney-client privilege requires certain portions of the records ... to be redacted” and “whether other exemptions apply”). Additionally, here, where the “actual cost” associated with this work is in excess of $75.00/hour, the cost estimate has been reduced for purposes of demonstrating that the fee estimate is made in good faith and in an attempt to be reasonable, and is not designed to limit, deter, or otherwise prevent any access to the nonexempt or confidential

Caitlin Hadala SPR25/1791 Page 5 June 30, 2025 records, but rather, to partially compensate the Town for the actual costs of complying with the request. Therefore, the Town respectfully requests that the statutory cap on fees for search, compilation, redaction, and reproduction time be waived, and that the Town be authorized to assess fees for this work at the rate of $75.00/hour for the privilege review to be conducted by Town Counsel, as detailed in its initial response and fee estimate. I find the Town has met its burden to explain how, given the nature of the responsive records, the 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. Conclusion Accordingly, I find the Town has established good cause for a time extension of 30 business days as described above. Further, as described above, the Town may assess a fee limited to $75.00 per hour for attorney review. Also as discussed above, I am unable to grant the Town’s request for relief from the obligation to provide responsive records. This office encourages the Town and Ms. McNamara 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 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. McNamara has the right to seek judicial review of this decision by 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: Holly McNamara