Friedman v. Division of Administrative Law Appeals

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23-P-369 Appeals Court

BRUCE FRIEDMAN vs. DIVISION OF ADMINISTRATIVE LAW APPEALS &
another.1

No. 23-P-369.

Suffolk. November 6, 2023. - March 15, 2024.

Present: Ditkoff, Englander, & Walsh, JJ.

Public Records. Supervisor of Public Records. Division of
Administrative Law Appeals. Practice, Civil, Motion to
dismiss.

Civil action commenced in the Superior Court Department on
September 8, 2022.

A motion to dismiss was heard by Robert B. Gordon, J.

Bruce Friedman, pro se.
Christine Fimognari, Assistant Attorney General, for the
defendants.

ENGLANDER, J. The Massachusetts public records law, G. L.

c. 66, § 10, "give[s] the public broad access to governmental

1 Bureau of special education appeals. Because the bureau
is a unit within the division of administrative law appeals, we
refer to the defendants collectively as the bureau throughout
this opinion.
2

records" (citation omitted). Boston Globe Media Partners, LLC

v. Department of Criminal Justice Info. Servs., 484 Mass. 279,

281 (2020). To effect this, the statute generally provides that

upon receipt of a request, a "records access officer" of a

public agency or municipality "shall" permit inspection of the

requested public records within ten business days, G. L. c. 66,

§ 10 (a), subject to various exemptions and privileges. See

G. L. c. 4, § 7, Twenty-sixth. Notwithstanding its breadth,

however, the public records law does not require public agencies

simply to provide the requested records no matter the burden

imposed, nor does it require public agencies to shunt aside

their principal public functions to do so. Rather, a rule of

reason governs both the obligation of public agencies to respond

and to provide records, and also the conduct of requestors of

public documents. See Globe Newspaper Co. v. Commissioner of

Educ., 439 Mass. 124, 129-130 (2003) (Globe Newspaper Co.).

This case requires us to consider the limits of what reasonably

may be asked of public agencies under the public records law.

The plaintiff in this case, Bruce Friedman, appeals from a

Superior Court judgment that dismissed his complaint for failure

to state a claim upon which relief could be granted. See Mass.

R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). Friedman's claims

involve five separate public records requests that he made of

the defendant, the bureau of special education appeals (bureau),
3

during 2021 and 2022. Friedman claims that the bureau violated

the public records law with respect to each of the requests, and

that he is entitled to the records as well as other relief.

As described in more detail below, Friedman in fact served

approximately thirteen public records requests on the bureau

over a roughly eight-month period between October 2021 and May

2022. Several of these requests were either extremely broad or

unduly vague. When the bureau responded to these requests, over

a dozen of its responses were met with a petition by Friedman to

the Commonwealth's supervisor of records (supervisor), arguing

that the bureau's responses were inadequate or unlawful. The

ensuing hail of requests, responses, petitions, additional

responses, and re-petitions extended the burden on the agency

and created an adversarial setting. This was unfortunate, as

the framework of the statutory process is (and should be) that

the government agency and the requestor will each act

reasonably.

On this appeal, we address each of Friedman's five requests

separately, asking whether Friedman's claim based upon that

request was properly dismissed under rule 12 (b) (6). As to

three of the requests, we conclude that dismissal was proper

because the requests failed to "reasonably describe[] the public

record sought." G. L. c. 66, § 10 (a) (i). As to the remaining

two requests, Friedman's claims were not subject to dismissal,
4

because, at least as pleaded in the complaint, those requests

complied with the public records law and the bureau failed to

provide records to which Friedman was entitled. Accordingly, we

vacate so much of the judgment as dismissed the claims

concerning those two requests and remand for further proceedings

consistent with this opinion. We otherwise affirm.

Background.2 1. Public records requests. Friedman is the

founder of and responsible for the operation of a community-

based news outlet. The defendant bureau is an independent unit

within the Division of Administrative Law Appeals, with a total

staff of twenty persons. The bureau provides dispute resolution

services and serves as the adjudicatory body "of disputes

between and among parents, school districts, private schools,

and other State agencies" concerning the rights of children with

disabilities to receive appropriate public education. G. L.

c. 71B, § 2A (a).

2 Unless otherwise noted, the facts are drawn from
Friedman's complaint and the exhibits attached thereto, which we
take as true in evaluating the motion to dismiss. See Marsh v.
Massachusetts Coastal R.R. LLC, 492 Mass. 641, 643 (2023). We
also consider the bureau's letters dated May 6, June 9, and
August 4, 5, and 10, 2022, that were sent to the supervisor and
Friedman concerning the requests at issue. Although those
particular letters were not attached to the complaint, Friedman
relied on the alleged inadequacy of the bureau's responses in
framing his complaint. See Ryan v. Mary Ann Morse Healthcare
Corp., 483 Mass. 612, 614 n.5 (2019); Marram v. Kobrick Offshore
Fund, Ltd., 442 Mass. 43, 45 n.4 (2004).
5

The facts as to the five requests at issue are set forth

separately below, together with the relevant history of the

bureau's response.

a. Request one (submitted October 6, 2021). In request

one, Friedman sought the following:

"Any and all electronic mail and/or text messages between
the [bureau] (inclusive of all [bureau] employees,
administration and contractors) and anyone at the @mhtl.com
[e-mail] domain," for the period from January 1, 2019,
through present.

Through request one, by referencing the e-mail domain

@mhtl, Friedman sought all e-mail messages (and text messages)

between bureau staff and employees of the law firm Murphy,

Hesse, Toomey & Lehane, LLP (Murphy, Hesse), for a period of

over two and one-half years. As Friedman explained at argument,

Murphy, Hesse often represents school districts in adjudicatory

proceedings before the bureau, so this request encompassed all

communications between the bureau and persons at a law firm that

frequently appeared before it.3 Because records responsive to

request one might include personally identifiable information

concerning students or parents, bureau staff were statutorily

obligated to review the records and make appropriate redactions

3 Because Murphy, Hesse does not represent the bureau but
rather appears before it, the attorney-client privilege is not
implicated by the request.
6

of such information before providing it to Friedman. See G. L.

c. 71B, § 2A (b).

In response to this request, the bureau located 11,000

potentially responsive e-mail messages (including duplicates),

and divided those records into fifteen batches.4 The bureau

produced the first batch in December 2021. According to the

bureau's response, it took bureau staff twenty-one hours to

redact this first batch.

As to the remaining fourteen batches, in a response dated

March 4, 2022, the bureau agreed to produce them without charge

on a rolling basis.5 Thereafter, after extending the timeline

for further production several times, the bureau explained in a

filing with the public records supervisor that Friedman's

4 The record does not reveal how the bureau identified these
records. It does not appear that the bureau produced text
messages in response to request one (but see request two), and
we note that the request for "text messages" with "anyone at the
@mhtl.com domain" would seem particularly ambiguous, and
difficult (if not impossible) to respond to.

5 The bureau did not respond to request one within ten
business days as prescribed by G. L. c. 66, § 10 (b), because
the request apparently was delivered to a "spam" folder in the
bureau's e-mail. Friedman filed one petition with the
supervisor when no initial response was received and two
petitions thereafter arguing that the failure to timely respond
precluded the bureau from charging a fee for production. See
G. L. c. 66, § 10 (e). In response to those petitions, the
bureau agreed to produce the remaining batches at no cost.
Thereafter, Friedman filed three more petitions with the
supervisor challenging the adequacy of the first batch of
records provided, as well as the bureau's failure to produce the
remaining batches.
7

subsequent conduct had made it impossible to meet the bureau's

public records law obligations, because Friedman "refuses to

give the [bureau] a chance to respond to one onerous request

before [he] files another." The bureau then detailed the

additional administrative burden its staff of twenty faced in

responding to Friedman's other public records requests and

administrative appeals, including those appeals related to the

adequacy of the first batch of records produced in response to

request one. Ultimately, the bureau never produced the

remaining fourteen batches of responsive records.

b. Request two (submitted May 4, 2022). Request two

sought the following:

"Any and all text messages between the [bureau] (inclusive
of all [bureau] employees, administration and contractors)
and anyone who currently works or has worked at the law
firm [Murphy, Hesse]," for the period from January 1, 2017,
through present.

Through request two, Friedman sought all text messages

between bureau staff and anyone who currently or ever had worked

at Murphy, Hesse for a period of over five years. This request

encompassed messages on both personal and State-issued cell

phones used by bureau staff; however, the request did not

provide names (or telephone numbers) of past and present Murphy,

Hesse employees to help facilitate the search. Because the text

messages could contain personally identifying information of
8

students and parents, responsive records needed to be reviewed

and, if necessary, redacted before production.

The bureau conducted searches of its staff members' cell

phones and produced responsive records on three occasions.6 The

bureau then took the position that its production was complete,

but invited Friedman to provide additional information if he was

aware of missing records that were not produced.

c. Request three (submitted April 26, 2022).7 Request

three sought the following:

"Any and all data contained in the case management system
used by the [bureau] for administration of [h]earing
[r]equests," for the period from January 1, 2008, through
present.

Through request three, the plaintiff sought all "data" in

the system used by the bureau to administer hearing requests,

stretching back over fourteen years. Friedman later explained

that he sought the "entire SQL Server dataset" in the "Time

Matters management software" used by the bureau.

6 Friedman filed three petitions with the supervisor in
connection with this request. In the first, Friedman
successfully argued that text messages sent or received by
bureau employees, including on their personal cell phones, that
pertain to official business are public records. On the
remaining two petitions, he challenged the sufficiency of the
production of responsive records.

7 We list the public records requests at issue in the order
they are described in the complaint, rather than
chronologically.
9

The bureau initially stated that it was "impossible" to

respond to the request as written. The bureau, however, did

produce some responsive records -- the hearing request logs for

the years that they were available. The bureau also conducted

searches of its "Time Matters" program, and provided Friedman

with screenshots of the searches so he "would know how the

search to obtain the data was phrased." Those searches yielded

spreadsheets that the bureau maintained "contain[ed] all the

data the [bureau] uses to administer hearing requests," and

apparently included information on hearings held before the

bureau, as well as whether the hearing was initiated by a

parent, school district, etc. The spreadsheets were also

provided to Friedman.8

d. Request four (submitted April 26, 2022). Request four

sought the following:

"Any and all calendaring documents including electronic
calendars of the [bureau] director," for the period from
January 1, 2008, through present.

Through request four, Friedman sought the bureau director's

calendars for over fourteen years. The bureau responded that it

had "data in [its] Exchange server pertaining to the director's

schedule," but that it encountered technological issues when it

8 Friedman challenged the sufficiency of the bureau's
responses to request three through two petitions filed with the
supervisor.
10

attempted to isolate that data and make the appropriate

redactions.9 The bureau has not produced records responsive to

this request.

e. Request five (submitted April 16, 2022). In request

five, Friedman sought for the period from January 1, 2008,

through present, the following:

"Any and all raw data in any format, including but not
limited to, databases, spreadsheets, recordings, electronic
mail systems, and or written documents, which support,
detail, and or provide substantive data published in the
attached 'published documents' for the following specific
information . . . ."

Then followed a list of twelve categories of documents (a

through l), set forth in the margin, related to hearings before

the bureau for the fourteen-year period in question.10

9 Friedman filed two petitions with the supervisor
challenging the sufficiency of the bureau's response to request
four. In the supervisor's review, she concluded that the
director's personal (as opposed to State-issued) calendar may be
withheld under exemption (e) to the public records law. See
G. L. c. 4, § 7, Twenty-sixth (e). The parties make no argument
about that decision.

10 The twelve categories include:

"a. All documents substantiating the number of hearing
requests filed by parents.
"b. All documents substantiating the number of hearing
requests filed by schools/districts.
"c. All entries/notices of appearance(s) filed by
attorneys representing schools/districts.
"d. All entries/notices of appearance(s) filed by
attorneys representing parents.
11

Although request five sought data that supported or

detailed "data published in the attached 'published documents,'"

the "published documents" purportedly attached to request five

were not provided in the record on appeal. At argument,

Friedman contended that those "attached 'published documents'"

clarified the scope of the records sought. Friedman further

explained that the purpose of his request was to locate data

underlying certain statistics that were published on the

bureau's website from 2013 to 2019. As written, however,

request five is logically read to seek "all raw data in any

format" supporting information in twelve broad categories over a

fourteen-year period. Responsive records needed to be reviewed

to make appropriate redactions of personally identifying

information. Moreover, the bureau's response indicated that

"e. All documents substantiating settlement conference
data, including case number, attorney appearances, and the
designation of 'settled[.]'
"f. All documents substantiating any party refuses
mediation.
"g. All documents substantiating any party refuses a
settlement conference.
"h. All documents substantiating 'Agreement to
Participate' by any party.
"i. All documents substantiating any 'Hearing Officer
Endorsement[.]'
"j. All documents substantiating 'parents fully
prevailed[.]'
"k. All documents substantiating 'school districts fully
prevailed[.]'
"l. All documents substantiating 'mixed relief was
granted'" (Emphases omitted).
12

some records were not maintained in electronic form and some

were stored off site. For example, to produce notices of

appearance and records where a party declined mediation over the

requisite period, the bureau estimated that staff would need to

review over three million pages of documents stored in 1,279

boxes and then perform the necessary redactions.

Although the record before us is not entirely clear, it

appears the bureau produced redacted spreadsheets in response to

five of these categories, and produced at least some records in

response to several others. The bureau also provided cost

estimates to produce records responsive to categories e and g.11

2. Superior Court proceedings. In September 2022,

Friedman sued in the Superior Court under G. L. c. 66,

§ 10A (c), alleging that the bureau failed to adequately respond

to the five records requests. The bureau filed a motion to

dismiss, and in February 2023, following a hearing, a judge

allowed the motion. In his decision, the judge concluded that

Friedman had not provided "sufficiently particularized or even

reasonably described identification of the records sought." The

judge directed to the parties to "start over," and dismissed the

complaint without prejudice. The judge further directed that

11Friedman filed three petitions with the supervisor in
connection with request five, challenging the sufficiency of the
bureau's response as well as the cost estimates.
13

before Friedman filed a new action, the parties were to confer

and make a good faith effort to agree on definitions, search

parameters, timeframes for production, rules for withholding

documents, and a methodology for computing fees. This appeal

followed.

Discussion. We review the allowance of a motion to dismiss

de novo, see Lanier v. President & Fellows of Harvard College,

490 Mass. 37, 43 (2022), and may affirm the judge's ruling on

any ground supported by the record. See Marculetiu v. Safety

Ins. Co., 98 Mass. App. Ct. 553, 562 (2020).

1. Public records law. "The public records law . . .

governs the public's right to access records and information

held by State governmental entities." Boston Globe Media

Partners, LLC, 484 Mass. at 281. While "the dominant purpose of

the . . . law is to afford the public broad access to

governmental records," Globe Newspaper Co. v. Boston Retirement

Bd., 388 Mass. 427, 436 (1983) (Boston Retirement Bd.), that

general principle is "tempered by the standard of

reasonableness." Globe Newspaper Co., 439 Mass. at 129-130. As

examples, the public records law requires a State agency to make

records available for inspection at "reasonable times," to

provide access "without unreasonable delay," and to provide

copies of the record on payment of a "reasonable fee." G. L.
14

c. 66, § 10 (a), (a) (iii). See Globe Newspaper Co., supra at

130. As the Supreme Judicial Court explained,

"[b]y incorporating the concept of reasonableness into the
manner, means, and methods by which the general principle
of broad access to public records is to be implemented, the
statute implicitly recognizes that it may not always be
convenient, practical, or appropriate for the custodian to
put aside other equally important or more urgent public
business in order to respond immediately to every request
for the examination of public records."

Id.

The touchstone of reasonableness also extends to the

conduct of the records requestor. An agency is required to

furnish a copy of a public record "provided that" three

requirements are met and that no exemptions apply. G. L. c. 66,

§ 10 (a).12 See G. L. c. 4, § 7, Twenty-sixth. The use of the

introductory phrase "provided that" makes clear that the listed

requirements are conditions necessary to trigger the agency's

12 General Laws c. 66, § 10 (a), as amended, provides:

"A records access officer . . . shall at reasonable times
and without unreasonable delay permit inspection or furnish
a copy of any public record . . . , or any segregable
portion of a public record, not later than [ten] business
days following the receipt of the request, provided that:
"(i) the request reasonably describes the public
record sought;
"(ii) the public record is within the possession,
custody or control of the agency or municipality that
the records access officer serves; and
"(iii) the records access officer receives payment of
a reasonable fee as set forth in [G. L. c. 66,
§ 10 (d)]."
15

obligation to produce. G. L. c. 66, § 10 (a). Relevant here is

the first of those conditions, which requires that "the request

reasonably describe[] the public record sought." G. L. c. 66,

§ 10 (a) (i). A reasonable description of the requested record

is necessary "so that the records can be identified and located

promptly." 950 Code Mass. Regs. § 32.06(1)(a) (2017).13

While no binding authority interprets the reasonable

description requirement in our public records statute, the

Federal Freedom of Information Act (FOIA) contains a similarly

worded provision. See 5 U.S.C. § 552(a)(3)(A) (upon request

that "reasonably describes such records" agency must promptly

make records available unless agency or record is otherwise

exempt). In light of the similarities between the Massachusetts

and Federal statutes, Massachusetts courts have previously

looked to the Federal law for guidance. See Attorney General v.

District Attorney for Plymouth Dist., 484 Mass. 260, 276 (2020).

See generally Scaccia v. State Ethics Comm'n, 431 Mass. 351, 355

(2000). Contrast Boston Retirement Bd., 388 Mass. at 432-433

13The reasonable description requirement was added to the
statute by an amendment effective January 1, 2017. See
St. 2016, c. 121, § 10. Prior to that time, the related
regulations provided: "Any person seeking access to a public
record or any portion thereof shall provide a reasonable
description of the requested record to the custodian so that he
or she can identify and locate it promptly." 950 Code Mass.
Regs. § 32.05 (4) (2003).
16

(differences between FOIA and Massachusetts statute reflect

Legislature's conscious decision to depart from FOIA).

Federal courts have explained that the reasonable

description requirement of FOIA is met when the request "would

be sufficient [to enable] a professional employee of the agency

who was familiar with the subject area of the request to locate

the record with a reasonable amount of effort" (citation

omitted). Truitt v. Department of State, 897 F.2d 540, 545 n.36

(D.C. Cir. 1990). See American Ctr. for Law & Justice v. United

States Dep't of Homeland Sec., 573 F. Supp. 3d 78, 81 (D.D.C.

2021). "Agencies must read FOIA requests as drafted, and

'[b]road, sweeping requests lacking specificity are not

sufficient'" (citations omitted). Center for Immigration

Studies v. United States Citizenship & Immigration Servs., 628

F. Supp. 3d 266, 270 (D.D.C. 2022).

The Federal case law holds that an agency is not obligated

to search for and disclose records until it receives a proper

FOIA request that, among other things, meets the threshold

reasonable description requirement. See Center for the Study of

Servs. v. United States Dep't of Health & Human Servs., 874 F.3d

287, 288 (D.C. Cir. 2017); Landmark Legal Found. v. Department
17

of Labor, 278 F. Supp. 3d 420, 430-431 & 431 n.7 (D.D.C. 2017).14

However, once "an agency becomes reasonably clear as to the

materials desired," its obligation to produce the records is

triggered. Truitt, 897 F.2d at 544. The question whether a

records request meets the reasonable description requirement

may, in some instances, be resolved on a motion to dismiss as a

matter of law. See Yagman v. Pompeo, 868 F.3d 1075, 1082 (9th

Cir. 2017) ("The requirement . . . that a person submitting a

FOIA request 'reasonably describe' what she or he seeks is

properly viewed as an ingredient of the claim for relief," that

may be addressed through motion to dismiss [citation omitted]).

See also Gun Owners of Am., Inc. v. Federal Bur. of

Investigation, 594 F. Supp. 3d 37, 42 (D.D.C. 2022).

The reasonable description requirement is a necessary

bulwark of the public records law, as the law "was not intended

to reduce government agencies to full-time investigators on

behalf of [requestors]." Assassination Archives & Research

Ctr., Inc. v. Central Intelligence Agency, 720 F. Supp. 217, 219

(D.D.C. 1989). The Federal cases described above, which

interpret the requirement, are persuasive and we apply them

14The bureau does not argue that it is free simply to
ignore a request that does not meet the reasonable description
requirement, see G. L. c. 66, § 10 (b). As detailed above, the
bureau provided the requestor with responses explaining its
position on each of the five requests at issue in this case.
18

here. With those principles in mind, we consider the legal

sufficiency of the records requests at issue, and the bureau's

responses. As provided in the statute, we review "the propriety

of any agency or municipal action de novo," without deference to

the supervisor's orders in the related administrative appeals.15

G. L. c. 66, § 10A (d) (1) (ii).

2. Analysis. a. Request one. Friedman's request for all

e-mail messages between bureau staff and a specified e-mail

domain (Murphy, Hesse's) for a three-year period provides a

useful backdrop for discussing the reasonableness requirements

of the law. The request itself is extensive and extremely

burdensome, encompassing 11,000 documents, each of which must be

separately reviewed for whether they contain protected

information.

The request likely is not "unreasonable" as a matter of

law, however, solely because responding to it is extremely

burdensome. Indeed, we do not understand the bureau to argue

The public records law provides a requestor with two
15

avenues for judicial review. Friedman initiated a civil action
in the Superior Court "to enforce the requirements of [G. L.
c. 66]." See G. L. c. 66, § 10A (c). Friedman did not invoke
the procedure under G. L. c. 66, § 10A (a), that permits a
requestor to seek relief from any of the supervisor's orders
through the filing of an action in the nature of certiorari
under G. L. c. 249, § 4. In any event, the statute provides
that judicial review under § 10A is de novo. G. L. c. 66,
§ 10A (d) (1) (ii).
19

that the request fails based upon burden alone.16 The documents

responsive to request one can be identified with reasonable

effort -- it is the production that is extremely time intensive.

Arguably, then, the request "reasonably describes the public

record[s] sought." G. L. c. 66, § 10 (a) (i). And the statute

includes a mechanism for addressing large or difficult requests.

In particular, the statute permits a records access officer to

petition the supervisor for an extension of time to furnish the

records "[i]f the magnitude or difficulty of a request, or the

receipt of multiple requests from the same requestor, unduly

burdens the other responsibilities of the agency."17 G. L.

c. 66, § 10 (c). In addition, "[a] records access officer may

16We do not rule out, however, that a request could simply
be too burdensome to meet the "reasonably describes"
requirement. Some Federal cases have so held. See American
Fed'n of Gov't Employees, Local 2782 v. United States Dep't of
Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990) ("An agency need
not honor a request that requires 'an unreasonably burdensome
search'" [citation omitted]). See also Center for Immigration
Studies, 628 F. Supp. 3d at 271-272. It is possible that at a
later stage in this litigation, the bureau might be able to show
that the request, either by itself or in conjunction with
Friedman's other communications, is unreasonably burdensome as a
matter of fact.

17The supervisor may grant an agency an extension of twenty
business days on a showing of good cause, and for a longer
period 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." G. L.
c. 66, § 10 (c).
20

assess a reasonable fee for the production of a public record,"

not to exceed the actual cost of reproducing the record, which

fee must be paid in advance.18 G. L. c. 66, § 10 (a)(iii), (d).

Thus, if a request is unduly large the statute provides for

extensions of time, and for the assessment of a reasonable fee.

Each of these mechanisms undoubtedly was available to the bureau

in responding to request one; the problem is that the bureau

appeared not to make its initial response within the ten

business days mandated by the statute, see G. L. c. 66,

§ 10 (b), which led Friedman to petition the supervisor of

public records and also led, eventually, to the bureau agreeing

to waive any fees for responding to the request.

Under the circumstances, Friedman has stated a valid claim

with respect to request one, which should not have been

dismissed. The request adequately identified the records

sought, despite its absolute magnitude. In the event that

Friedman ultimately proves his claim, questions as to how the

production should then proceed will be left in the first

instance to the sound discretion of the Superior Court judge.

We emphasize, once again, that the touchstone of compliance with

the statute is reasonableness. Preferably the parties would

18The statute sets certain parameters for assessing the
fee, including that the agency may charge an hourly fee for
employee time after the first four hours. See G. L. c. 66,
§ 10 (d) (ii).
21

work out, among themselves, reasonable timelines and a

reasonable description of records sought. Failing that, the

judge may need to become involved.19

b. Request two. Unlike request one, which required the

bureau to search through bureau staff's work e-mail accounts to

identify messages to and from a specified e-mail domain, request

two sought text messages exchanged between bureau staff

(employees, administrators, and contractors) and "anyone who

currently works or has worked" at the Murphy, Hesse law firm

over a more than five-year period. The request did not identify

names of past and present employees of the law firm, nor did it

identify cell phone numbers or any specific business that the

text messages may concern. To respond to the request, the

19On remand, the judge may consider whether, although the
bureau previously agreed to waive fees as to request one, it is
nevertheless appropriate for the bureau to charge a fee for
further production activity as to that request. The
circumstances are unusual, and further development of the
factual record is likely required in light of the statutory
requirements for charging fees. As it stands, the bureau claims
that hundreds of person hours would be required to complete
provision of the records.

We question the practicality of requiring an agency to
provide "an itemized, good faith estimate" of fees for
responding to a request such as request one within ten business
days, where the agency ultimately determines that the request
seeks 11,000 potentially responsive records, each of which must
be separately reviewed for appropriate redactions. G. L. c. 66,
§ 10 (b) (viii). Given the statute's emphasis on
reasonableness, there should be some opportunity to adjust the
time requirements in responding to a request of this nature.
Cf. G. L. c. 66, § 10 (c), last paragraph.
22

bureau would first have to determine, without aid from the

request, each person who worked (or had worked) at the law firm,

then somehow identify their personal cell phone numbers, and

then conduct a search of each bureau staff member's personal

(and, if applicable, work-issued) cell phone to determine

whether they exchanged text messages.

Although the bureau made an effort to obtain and did

voluntarily provide some responsive records, we conclude that

its obligation to do so was not triggered by this request,

because the request did not reasonably describe the records

sought. The request did not include information sufficient to

allow "a professional employee of the agency who was familiar

with the subject area of the request to locate the record with a

reasonable amount of effort" (citation omitted). Truitt, 897

F.2d at 545 n.36. Cf. Landmark Legal Found. v. Department of

Justice, 211 F. Supp. 3d 311, 318 (D.D.C. 2016) ("request for

'[r]ecords evincing the use of' personal e-mail accounts, other

electronic communication, and social media platforms to conduct

government business" does not reasonably describe records

sought).

Friedman asserts that the bureau's reasonable description

argument must fail because the bureau did not assert the

argument until its motion to dismiss in the Superior Court. We

disagree. While as a practical matter it may be the better
23

course for an agency to state upfront that a request fails to

meet the reasonable description requirement, the agency also may

attempt to work with the requestor to determine whether the

requestor can refine the request. That is what happened here.

The bureau voluntarily produced some responsive records and also

invited Friedman to provide information about additional text

messages that he thought were missing in order to improve the

search. Under the circumstances, the bureau did not also need

to state in its prelitigation response that the original request

violated the reasonable description requirement. The claims

related to request two properly were dismissed.

c. Request three. Request three also fails to reasonably

describe the records sought. The request seeks "[a]ny and all

data contained in the case management system" used by the bureau

for the administration of hearing requests, spanning a period of

over fourteen years. The request as written literally seeks an

entire database, and indeed, that is how Friedman describes it.20

We agree with the bureau's initial position that it would not be

possible to respond to this request, as the request does not

20Friedman explained in his administrative appeal that the
bureau produced screenshots from a program called "Time
Matters," which is a "[l]egal [p]ractice management tool . . .
[that] uses a[n] SQL server [d]ata [b]ase as a [b]ack-[e]nd data
store." In arguing that the bureau did not produce all
responsive records, Friedman maintained that "[t]he entire SQL
Server dataset is responsive to this request."
24

make a reasonable effort to define or limit what records it

seeks. The request thus falls into the category of a "[b]road,

sweeping request[] lacking specificity" (citation omitted),

Center for Immigration Studies, 628 F. Supp. 3d at 270, -- which

is unreasonable. While "segregation and extraction of the . . .

requested information from the existing fields in [an agency's]

databases is . . . the type of data recovery that is expected in

a digital world under the public records law," that is not the

nature of this request. Attorney General, 484 Mass. at 278. A

request that in effect requires an agency to replicate all its

data (and then apply appropriate redactions) is not a request

that permits a bureau employee exerting a reasonable amount of

effort to locate and produce the records. See Truitt, 897 F.2d

at 545 n.36.

d. Request four. Request four is reasonably construed as

seeking the director's calendars (electronic or otherwise). So

construed, the request reasonably described the records sought.

Through the parties' exchanges and the supervisor's orders, the

bureau identified data in its "Exchange server" pertaining to

the director's schedule that was responsive to request four.

The bureau has not produced that data. Therefore, Friedman has

sufficiently stated claims concerning request four.

e. Request five. Request five did not reasonably describe

the records sought. The request sought "[a]ny and all raw data
25

in any format" concerning twelve separate categories of

information over a fourteen-year period. Friedman acknowledged

at argument that this was his "most troublesome request";

however, he explained that the request was clarified by

documents that he attached to the request, but that are not part

of the record on appeal. "We stress that it is an appellant's

duty to produce an appendix containing all portions of the

record relevant to the issues raised on appeal." Lodigiani v.

Paré, 103 Mass. App. Ct. 140, 141 n.3 (2023).

At argument, Friedman further explained that the purpose of

his request was to locate data underlying certain statistics

that were published on the bureau's website from 2013 to 2019,

including those pertaining to the bureau's case load and the

success rate of represented and unrepresented parties, as well

as those statistics used in the bureau's annual reports.

Friedman perhaps could have crafted a reasonable request that

accomplished that end; the request as written did not. See Gun

Owners of Am., Inc., 594 F. Supp. 3d at 45 (FOIA requestor must

submit new request to limit scope of previous request; request

cannot be amended through brief filed in court).

The bureau responded by voluntarily producing documents and

providing explanations concerning each category of document

sought. Despite the supervisor's suggestion that Friedman

narrow the parameters of his request, the parties apparently
26

were unable to reach an agreement, and the bureau was not

obligated to produce records in response to the request as

written because it was not sufficiently specific.21

Conclusion. We vacate so much of the judgment as dismissed

the claims concerning public records requests one and four, and

remand for further proceedings consistent with this opinion. We

otherwise affirm the judgment.

So ordered.

21Friedman also challenges the judges' failure to act on
(and thus in practical effect deny) his motions to expedite the
Superior Court proceeding. The Superior Court is obligated to
expedite the proceeding "when feasible." G. L. c. 66,
§ 10A (d) (1) (iii). Here, after two hearings (one scheduling
conference and one motion hearing) and resolution of the motion
to dismiss, final judgment entered within approximately six
months of the filing of the complaint. We are satisfied that
the judges acted expeditiously and we discern no error in their
handling of the motions to expedite.