Castinetti, Stephen v. Saugus, Town of (SPR 20140179)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 30, 2014 SPR14/179 Mr. Scott Crabtree Town Manager Saugus Town Hall, Suite 7 298 Central Street Saugus, MA 01906 Dear Mr. Crabtree: I have received the petition of Stephen L. Castinetti appealing the March 28, 2014 response of the Town of Saugus (Town) to his January and February 2014 requests for public records. G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Castinetti requested copies of records related to a 2013 investigation of him in his capacity as a member of the Town's Board of Selectmen. On March 28, 2014, fifty (50) days after Mr. Castinetti's February request, the Town provided a written estimate. It is the estimate that is the basis of Mr. Castinetti's appeal. The Town is reminded that under the Public Records Law and its Access Regulations (Regulations) all requests for public records must be met with a response within ten (1 0) days of the request. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.05(2). The ten-day provision is a maximum, rather than a minimum time frame for complying with a public records request. Boston Globe Newspaper Company v. Commissioner of Education, 439 Mass. 124 (2003). Status oft he requester Mr. Castinetti's status as the subject of the investigation does not afford him with any greater right of access to the requested information than any other person in the public realm. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Fees The Town estimated fees totaling $4,087.50, based upon on twenty-five (25) hours of an Informational Technology Department (IT) employee's time at a rate of $43.50 per hour, and OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Scott Crabtree SPR14/179 Page Two June 30, 2014 twenty (20) hours oflegal time at a rate of$150.00. I find the IT estimate is acceptable and in compliance with the Regulations. Accordingly, this portion of the appeal is closed. A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06. The Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable ofperforming the task. 950 C.M.R. 32.06(1)(c) (emphasis added). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). The Town's estimate included fees to create a log of responsive records. The Public Records Law relates to records that exist at the time of the request. Ifthe Town chooses to create a reference tool to assist it in responding to a records request, it may not pass the cost of the creation of this tool to the requester. The estimate you provided fails to explain why legal services are needed to conduct the search and segregation of responsive records. Moreover, the hourly rate provided is an estimated hourly rate based upon "the average hourly rate in Massachusetts for a law firm associate." This portion of the estimate fails to meet the burdens imposed by the Public Records Law and its Regulations and must be revised to reflect actual estimated costs. Accordingly, the Town is hereby ordered to revise the estimate related to search and segregation of the responsive records within ten (10) days in a manner consistent with this determination, the Public Records Law and the Regulations. Once Mr. Castinetti pays the revised estimate, he must be provided with the records. This administr ive appeal is closed. Supervisor of Records cc: Mr. Stephen L. Castinetti Mr. John L. Vasapolli, Esq.