Mass Records Act v. Barre, Town of - Town Administrator (SPR 20252995)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 21, 2025 SPR25/2995 Melanie Jackson Town Administrator Town of Barre 40 West Street, Suite 697 Barre, MA 01005 Dear Ms. Jackson: On October 13, 2025, this office received the petition of Gregg J. Corbo, Esq., on behalf of the Town of Barre (Town) seeking an extension of time to produce records, permission to charge for time spent segregating or redacting responsive 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. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 29, 2025, the requestor sought the following records: 1. All communications between the Town Administrator or Interim Town Administrator to all other parties, including but not limited to emails or other written communications, from April 1, 2025, to September 29, 2025. Please list any and all documents withheld along with any exemptions cited under the records act; 2. All communications between the town and [a named individual], including any staff members or town employees, for the period of August 1, 2025, to August 24, 2025. Please list any and all documents withheld along with any exemptions cited under the records act; 3. All communications between the Board of Selectmen amongst each other, with [the named individual], and any Interim Town Administrator for the period of August 1, 2025, to September 29, 2025. Please list any and all documents withheld along with any exemptions cited under the records act; and 4. Copies of all payroll records for the Town Administrator and/or Interim Town Administrator for the period covering August 1, 2025, to September 28, 2025. Please list any and all documents withheld along with any exemptions cited under the records act. 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

Melanie Jackson SPR25/2995 Page 2 October 21, 2025 Petitions 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. 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 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: The Town has provided documents responsive to Request Nos. 2, 3 and 4, but it requires relief with respect to Request No. 1. The Town anticipates that the request for all communications between the Town Administrator or Interim Town Administrator (hereinafter collectively referred to the “Town Administrator) for a period of six months will generate thousands of potentially responsive records. In fact, an initial search conducted by the Town’s Information Technology Department has yielded approximately 12,000 responsive records. The Town Administrator is the Chief Administrative Officer of the Town, and

Melanie Jackson SPR25/2995 Page 3 October 21, 2025 their responsibilities include: ensuring the efficient administration of all Town departments; appointing disciplining and recommending removal of all department heads, all officers, subordinates and employees; assuring that full and complete records of the financial and administrative activities of the Town are kept; negotiating employment contracts; serving as the Town’s Chief Procurement Officer, ADA Coordinator, Records Access Officer, Parking Clerk and Municipal Hearings Officer; and for implementing security protocols for the Town Hall and the Town’s computer network. As the Town’s Chief Administrative Officer, the Town Administrator, is directly involved in, copied on or forwarded almost every written communication sent or received by the Town. Moreover, communications with the Town Administrator include communications with respect to matters that are not subject to disclosure under almost every exception to the public records law, that are subject to the attorney/client and work product privileges and that contain highly sensitive information concerning personnel matters, bank account information and security protocols, just to name a few. 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, and 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. 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)

Melanie Jackson SPR25/2995 Page 4 October 21, 2025 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). Current Petition to Assess Fees In its petition, the Town requests that it “be permitted to include time spent segregating and redacting records subject to all privileges and exemptions (not just those required by law),” and provides the following information in support of its request: To the extent that the Town may be obliged to respond to Request No. 1, a matter on which the Town reserves its right to object in whole or in part, it provides the following initial response. . . . Upon receipt of your request, the Town’s IT department has diligently undertaken an initial, good faith search for responsive records, and approximately 12,000 records that are potentially responsive to your request have been located. Where permitted by law, such records or material contained therein may be withheld or redacted under any of the exemptions to the Public Records Law, other applicable provisions of law, and/or common law privileges, such as the attorney-client privilege. See, e.g., G.L. c. 4, § 7(26); Suffolk Constr. Co. v. Div. of Capital Asset Management, 449 Mass. 444, 449- 450 (2007); 950 CMR 32.06(3). Given the number of potentially responsive records and your failure to identify any subject-matter to search for, a determination of which exemptions will apply

Melanie Jackson SPR25/2995 Page 5 October 21, 2025 cannot be made without an in depth review of the records. However, because the Town Administrator has such a wide range of responsibilities, the Town anticipates that responsive records will have material that must be withheld or redacted pursuant to the attorney/client privilege and work product doctrines, and/or one or more of the following exceptions in G.L. c. 4, §7, cl. 26: (a) specifically or by necessary implication exempted from disclosure by statute, including but not limited to G.L. c. 30A, §21 (executive session material) and G.L. c. 93H (data security); (b) related solely to internal personnel rules and practices of the Town; (c) personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; (d) inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the Town; (h) proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of proposals or bids to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases; and inter-agency or intra-agency communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person; (i) appraisals of real property acquired or to be acquired until (1) a final agreement is entered into; or (2) any litigation relative to such appraisal has been terminated; or (3) the time within which to commence such litigation has expired; (n) records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, is likely to jeopardize public safety or cyber security; and (o) the home address, personal email address and home telephone number of unelected employees of the Town. 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 redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records

Melanie Jackson SPR25/2995 Page 6 October 21, 2025 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 states the following concerning its request to charge a fee in excess of $25.00 per hour: Due to the highly sensitive and confidential nature of the documents, Town Counsel is the lowest paid employee capable of reviewing all such records for necessary redactions for attorney-client and work product privileges, and other applicable exceptions. 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”); see also Chawla v. Dep’t of Revenue, Suffolk. Sup. Ct. Case No. 1784CV02087, at 2 (Jan. 23, 2019) (public records law not intended to require “nonlawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to” a topic). Town Counsel’s hourly rate is $245/hour, which far exceeds the $25.00/hour limit, and given the unreasonableness of the request, the Town should be fully reimbursed for the work. 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. Request for Relief In its petition, “the Town respectfully requests that it be relieved of its obligation to respond to Request No. 1 of this request.” In addition to the information quoted above, the Town further argues the following in support of its request for relief: Here, as in Friedman, the requestor expects the Town to search for, compile, redact, and reproduce, thousands of communications to or from the Town’s Chief Administrative Officer. Going through such a large number of records will necessarily take an extraordinary number of hours, and to comply with the ten business day requirements of the law, someone will have to work full-time on this request. It is simply unreasonable to expect the Town to undertake this work on the requestor’s behalf and for that reason, the Town requests that you relieve it of its obligation to respond. 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

Melanie Jackson SPR25/2995 Page 7 October 21, 2025 information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c). Conclusion Accordingly, I find the Town has established good cause for a time extension of 30 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the Town may assess a fee for segregation and redaction. Further, as described above, the Town may assess a fee limited to $75.00 per hour for attorney review. However, as explained above, I cannot grant the Town’s petition seeking relief from its obligation to produce responsive records. This office encourages the requestor 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). Please note, the requestor 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: Requestor Gregg J. Corbo, Esq