Smith, Jeffery v. Hardwick, Town Of (SPR 20260153)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 22, 2026 SPR26/0153 Ryan J. Witkos Town Clerk Town of Hardwick 307 Main Street Gilbertville, MA 010131 Dear Mr. Witkos: On January 14, 2026, this office received your petition on behalf of the Town of Hardwick (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, Jeffery Smith. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 30, 2025, Mr. Smith requested: All communications (including but not limited to emails, text messages, instant messages, letters, memos, notes, voicemails, or any other written or electronic correspondence) sent to or from the current Chair of the Hardwick Select Board and any other Town of Hardwick employees (including, but not limited to, the Town Administrator, department heads, clerks, assistants, or staff in any town department)… from January 1, 2025, to December 29, 2025 (the past year) [including] communications on both town-issued and personal devices/accounts if they relate to official town business. In an email to this office on January 18, 2026, Mr. Hardwick objected to the Town’s petition. 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 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

Ryan J. Witkos SPR26/0153 Page 2 January 22, 2026 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 carefully reviewed this request, and based on the Town’s initial good faith work, the Town anticipates that there are significant electronic records that must be located from dozens of individuals, and that information contained in the responsive records will contain information protected by the attorney-client privilege as well as well as other potential confidential legal and personnel matters under Exemption (c) to the Public Records Law, for which the Town must review and undertake the requisite balancing analysis… [T]he Town respectfully submits the records requested require locating voluminous data and a review, for example, of hundreds and perhaps thousands of e-mails for dozens of employees emails, text messages, instant messages, letters, memos, notes, voicemails, or any other written or electronic correspondence) sent to or from the current Chair of the Hardwick Select Board and any other Town of Hardwick employees (including, but not limited to, the Town Administrator,

Ryan J. Witkos SPR26/0153 Page 3 January 22, 2026 department heads, clerks, assistants, or staff in any town department) for an almost one year period; including a necessary review for privileged and/or other confidential personnel or executive session information contained in such records, warranting an extension of time for at least an additional 30 business days. I find that in light of the need to search for, collect, segregate and examine the records, in conjunction with the capacity of the Town to produce the request without the extension and the 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) 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

Ryan J. Witkos SPR26/0153 Page 4 January 22, 2026 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 to assess fees for segregation and redaction, and explains the following in support of its request: The Town has carefully reviewed this request, and based on the Town’s initial good faith work, the Town anticipates that there are significant electronic records that must be located from dozens of individuals, and that information contained in the responsive records will contain information protected by the attorney-client privilege as well as well as other potential confidential legal and personnel matters under Exemption (c) to the Public Records Law, for which the Town must review and undertake the requisite balancing analysis as pursuant to People for the Ethical Treatment of Animals (PETA) v. Dept. of Agric. Res., 477 Mass. 280, 292 (2017). 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 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 argues the following: Without an adjustment in the statutory rate, the Town, which has limited resources and staffing, will incur significant financial costs… [T]he Town’s IT consultant, the Town Administrator, Town Counsel, and the Town’s Records Access Officer, are the lowest paid employees capable of (1) locating and coordinating the responsive records and (2) reviewing all such records for necessary redactions for attorney-client privilege, attorney-client work product, and other related legal and policy considerations, respectively… [T]he Town’s IT consultant is the only employee capable of establishing a location where the

Ryan J. Witkos SPR26/0153 Page 5 January 22, 2026 responsive records may be deposited and obtaining such information from the Town’s servers. Here, the Town is providing a conservative cost estimate, which has been reduced from the Town Counsel’s hourly rate of $330.00/hour to review privileged materials to the reduced rate of $75.00/hour for purposes of demonstrating that the fee estimate is made in good faith… warranting [a] waiver of the statutory limits on fees to charge the IT consultant, Town Administrator, Town Counsel and RAO’s hourly rate of $90.00/hour, $55.44/hour, $330.00/hour and $39.66, respectively, which all well exceed the $25.00/hour that may be assessed on any records requests submitted by the Requestor. In this instance, the only other individuals other than Records Access Officer who may be capable of reviewing such records after IT has created a location for the current Chair of the Hardwick Select Board and any other Town of Hardwick employees (including, but not limited to, the Town Administrator, department heads, clerks, assistants, or staff in any town department) who must review an almost one year period; to then upload said records for review, to determine the scope of appropriate exemptions, privileged communications, and privacy interests utilizing the requisite balancing test, is the Town Administrator, Town Counsel, or RAO. The Town is willing to reduce any such rate for Town Counsel review to $75.00/hour; and the Records Access Officer rate at $25.00/hour… 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 $90.00/hour for the IT consultant, $55.44/hour for the Town Administrator, $75.00/hour for Town Counsel, and $25.00/hour for the Records Access Officer… Based on its petition, I find the Town has met its burden to explain how, given the nature of certain responsive records, the request could not prudently be completed without assessing fees in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). However, this allowance is limited to $75.00 per hour for attorney review by Town Counsel as described above. Regarding the work of the Town’s IT consultant and the Town Administrator, however, I find the Town has not met is burden to explain how the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. Id. Request for Relief In its petition, the Town also “requests that the Supervisor find that this 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 and relieve the Town of its obligation to provide copies of the records sought.” In support of its request for relief, the Town stated:

Ryan J. Witkos SPR26/0153 Page 6 January 22, 2026 By way of background, the Town has already responded to close to two dozen public records requests sent by this Requestor since the start of 2025 which consists of, but is not limited to asking for emails, text messages, telephone records of almost two dozen officials; requests for payroll, time sheets, attendance, and time-off records for every town employee (over one hundred.) This particular request seeks… voluminous records… 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, I cannot grant the Town’s petition seeking relief from its obligation to produce responsive records. 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 by Town Counsel. However, as noted above, I am unable to grant the Town’s request to assess fees in excess of $25.00 per hour for the work of the Town’s IT consultant and the Town Administrator, nor am I able to grant relief from the obligation to produce responsive records. This office encourages Mr. Smith and the Town 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, Mr. Smith 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: Jeffery Smith