Joslin Murphy v. Brookline, Town of - Town Counsel (SPR 20251933)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2025 SPR25/1933 Jonathan Simpson, Esq. First Assistant Town Counsel Town of Brookline 333 Washington Street, Sixth Floor Brookline, MA 02445 Dear Attorney Simpson: On July 3, 2025, this office received your petition on behalf of the Town of Brookline (Town) seeking an extension of time to produce records, requesting permission to charge for time spent segregating or redacting responsive records and a waiver of statutory limits on fees that may be assessed in responding to the request. 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 requestors, Joslin Murphy and Donelle O’Neal, Sr. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). The June 18, 2025 Public Records Request [1] Copies of any and all communications to or from Town Administrator . . . and any member of the Select Board referencing an investigation of the complaint against [a named individual] for alleged “unethical conduct” and/or approving the retention of Kurker Paget LLC to investigate such complaint[;] [2] Copies of any and all written communications among or between Town Administrator . . ., Town Counsel, members of the Select Board, the Town Moderator, DPW Commissioner . . ., DPW employee . . ., and/or HR Director . . . pertaining to the so-called “Lebovitz Amendment” or to any formal or informal complaints made against [a named individual] or any other petitioners of the Lebovitz Amendment between March 27, 2025 and June 18, 2025[;] [3] Copies of the DPW Sanitation Division daily work sheets identifying the daily sanitation personnel and equipment assignments between April 1, 2025 and May 30, 2025. 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

Jonathan Simpson, Esq. SPR25/1933 Page 2 July 10, 2025 The June 19, 2025 Public Records Request [1] Any and all notes, memoranda, or other records referring to, memorializing, or pertaining in any way to any and all written or oral complaints received by DPW Commissioner . . . and/or Town Administrator . . . between March 27, 2025 and June 23, 2025 concerning my conduct as a Brookline Town Meeting member and/or Special Municipal Employee[;] [2] Copies of any and all notes, memoranda, or other records memorializing or pertaining in any way to the legal services provided by or to be provided by Attorney . . . and/or [an identified individual] in connection with an investigation of any ethics complaints made against me that are in the possession, custody or control of any employee or official of the Town of Brookline[;] [3] Copies of any and all written retainer agreements or related correspondence, whether in draft or final form, exchanged between any employee or official of the Town of Brookline and Attorney . . . pertaining to this matter[;] [4] Copies of any and all policies of the Town of Brookline pertaining to the investigation of any potential ethics complaints made against Town Meeting Members and/or Special Municipal employees in this matter, along with the date of their adoption by the Town[;] [5] Copies of any and all appearance of conflict disclosures submitted to the Town Clerk or the Select Board pursuant to G.L. c. 268A s. 23(b)(3) by any employee or Town official in connection with this matter. 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.

Jonathan Simpson, Esq. SPR25/1933 Page 3 July 10, 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) 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). Current Petition In its petition, the Town requests “an extension of time of 30 business days from the date of this petition to respond to the request” and provides the following information in support of its request: [T]he scope of the request, the volume of the potentially responsive materials and the need to segregate and log exempt material means that an appropriate response will require significantly more time than is provided for by G.L. c. 66. As noted above, the Town has already begun to search and review its records, and believes that the short extension requested here will allow it to serve the public interest in access to records without excessive delay while still preventing disclosure of exempt material. In light of the need to collect, segregate and examine the records, as well as the capacity of the Town to produce the records without an extension, 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. 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 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).

Jonathan Simpson, Esq. SPR25/1933 Page 4 July 10, 2025 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 or to charge in excess of $25 an hour for the provision of public 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 understanding 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Current Petition In its petition, the Town requests permission to “charge for time spent segregating and redacting these records.” In support of its request, the Town provides the following information: [The Town] has begun to search for records responsive to this request, and has already located thousands of documents potentially responsive to them.

Jonathan Simpson, Esq. SPR25/1933 Page 5 July 10, 2025 [A]s the request seeks communications with Town Counsel’s Office, the responsive materials will include records that fall into one of the applicable exemptions to the definition of “public records” found in G.L. c.4, §7, clause twenty-sixth, including, but not limited to, being subject to the attorney-client privilege or the deliberative process exemption. In an email to this Division on July 10, 2025, Joslin Murphy objects to the Town’s petition and argues “. . .in Town Counsel’s email correspondence dated August 9, 2023 related to a public record request made to the Town by a news editor, [he] stated that Town staff is capable of reviewing approximately “240 pages” per hour for responsiveness. Based upon Mr. Simpson’s early estimate of “almost 2,000” responsive records, the review of these records can reasonable be expected to require far less time than the time requested under this petition. . . .[W]here many of the requested records do not invoke the attorney client privilege, it is unclear how much of the request could not be prudently completed without a fee in excess of $25.00 per hour.” In light of the Town’s petition, 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 segregation or redaction. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for the segregation and redaction of such exempt material. Fee in Excess of $25.00 per Hour In its petition, the Town requests “permission pursuant to G.L. c. 66, § 10(d)(iv) and 950 CMR 32.06(4)(g) and (h) to charge a fee in excess of $25/hour for the time spent responding to the request.” Subsequently in an email dated July 9, 2025, the Town clarified its petition that “[a]t this point, we estimate that the bulk of the time (~75%) spent responding to the requests could be done by an employee whose time would be charged at $28.64/hr. The portion of the time spent on segregation and redaction (~25%) would need to be done by an attorney, whose time would be charged at $71.15/hr.” The Town provides the following in support of its request to charge fees in excess of $25.00 per hour: [T]he lowest paid employee of the Town able to do the work necessary to respond to this request is paid at a rate higher than $25/hour. Further, because much of the work necessary to respond to this request must be performed by an attorney familiar with the proper application of the protections for privileged materials, that is work at an even higher rate. In light of the Town’s petition, I find the Town has partially 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). The Town may assess an

Jonathan Simpson, Esq. SPR25/1933 Page 6 July 10, 2025 hourly rate limited to $71.15 for attorney review for segregation and redaction under the attorney- client privilege. However, the Town may not assess a fee in excess of $25.00 per hour for other tasks. G. L. c. 66, § 10(d)(iii). Conclusion As described above, I find that the Town has established good cause for a time extension of 30 business days. Additionally, to the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction. Further, while the Town may assess a fee limited to the hourly rate of $71.15 for attorney review, the Town may not assess a fee in excess of $25.00 for other tasks. Further, this office encourages the parties to continue to communicate 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 records sought more efficiently and affordably.) When preparing a fee estimate for the provision of the requested records, the Town is advised to provide a detailed explanation to the requestors detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Town must provide a response to Joslin Murphy and Donelle O’Neal, Sr. within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Joslin Murphy and Donelle O’Neal, Sr. 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: Joslin Murphy and Donelle O’Neal, Sr.