Christine Chesbrough v. Tewksbury, Town of (SPR 20253317)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2025 SPR25/3317 Steven Sadwick Assistant Town Manager Town of Tewksbury 1009 Main Street Tewksbury, MA 01876 Dear Ms. Sadwick: On November 10, 2025, this office received your petition on behalf of the Town of Tewksbury (Town) seeking an extension of time 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 requestor, Christine Chesbrough. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On November 1, 2025, Ms. Chesbrough requested the following: [C]opies of all records in the Town’s possession related to the proposed Battery Energy Storage System (BESS) facility in Tewksbury, Massachusetts. Specifically, I am seeking: [1] All project applications, site plans, and permits submitted by or on behalf of the developer; [2] Staff reports, memos, and correspondence involving the Planning Board, Conservation Commission, Fire Department, Board of Health, and Select Board; [3] Any environmental impact analyses, safety or hazard assessments, or emergency response plans related to the proposed facility; [4] Any Fiscal Impact Statements, Host Community Agreements (HCA), Payment In Lieu of Taxes (PILOT), or Tax Increment Financing (TIF) documents; [5] Meeting minutes, emails, and letters between town officials, consultants, and the project proponent; [6] Correspondence with state or federal agencies, including MassDEP, Department of Fire Services, or Department of Energy Resources, regarding project siting, permitting, or safety review. 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

Steven Sadwick SPR25/3317 Page 2 November 14, 2025 In an email to this office on November 10, 2025, Ms. Chesbrough objected to the Town’s petition. 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. 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). Request for Additional Time to Produce Records In its petition, the Town requests “a 30-day extension” to furnish copies of the requested records. In support of its request, the Town explains, “[t]he correspondence, primarily emails to and from department heads totals 1846 emails that would need to be reviewed” and further notes, “due to the breadth and detail of the request we respectfully request . . . [the] extension in order to perform the research and provide the records.” In light of the need to search for and examine the records, and 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)-(iii). The Town is granted an extension of 30 business

Steven Sadwick SPR25/3317 Page 3 November 14, 2025 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). 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 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 under a petition under

Steven Sadwick SPR25/3317 Page 4 November 14, 2025 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, “to increase the hourly rate” for time required to comply with Ms. Chesbrough’s request and further explains the following The information requested is of a technical nature and the research to compile these documents is not something that can be performed by our administrative staff. The correspondence, primarily emails to and from department heads totals 1846 emails that would need to be reviewed by both department heads and ultimately Town Counsel as the Town is current in negotiations for a host community agreement. The Information Technology Director’s hourly rate is $61.19 and would spend approximately 3 hours of search and is the only one capable of a meta-search of the Town’s email system. Other staff hourly rates vary from $43.06 to $108.38. On average each staff member would spend approximately 2 hours each reviewing their email. Finally, Town Counsel, would have to review emails for redaction would could be up to 3 hours at $170 per hour [sic]. Based upon the above estimates, the good faith estimate and request for hourly fee waiver are as follows: IT Director $61.19/ hr 3 hours = $183.57 Staff Average $75.72/ hr 2 hours/ staff 6 staff members= $908 Town Counsel $170/ hr 3 hours= $510 Upon review, I find the Town has not met its burden to explain how 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). Although the Town states, “1846 emails . . . would need to be reviewed by . . . Town Counsel,” and further indicates that “Town Counsel . . . would have to review emails for redaction . . . at $170 per hour[,]” the Town has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information. In addition, it is unclear how the request could not be prudently completed without a fee in excess of $25 per hour; specifically, it is uncertain why this task cannot be completed by the lowest paid Town employee who has the necessary skill required to segregate or redact records responsive to the request. Further, where the Town seeks to assess a fee of $75.72 per hour for the time, “each staff member . . . [reviews] their email[,]” it not clear why these individuals are the lowest paid employees who have the necessary skills required to perform such tasks. The Town additionally seeks to assess an hourly rate of $61.19 for specialized I.T. search and attributes this rate to the Town’s Information Technology Director, who “is the only one capable of a meta-search of the Town’s email system.” Please be advised that a custodian cannot

Steven Sadwick SPR25/3317 Page 5 November 14, 2025 charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); G. L. c. 66, § l2. See also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Conclusion Accordingly, as described above, the Town has established good cause for a time extension of 30 business days. Additionally, I find the Town has not met its burden to explain how the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. Please note, however, this does not preclude the Town from charging for segregation and redaction that is required by law. When preparing a fee estimate for the provision of the requested records, the Town is advised to provide a detailed explanation to the requestor indicating why the estimated 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 Ms. Chesbrough within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Ms. Chesbrough 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: Christine Chesbrough