Cox, Jr., Esq., William v. Andover, Town of (SPR 20140322)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supe1·visor ofR ecords July 22, 2014 SPR14/322 Mr. William D. Cox, Jr. 145 South Main Street Bradford, MA 01835 Dear Attorney Cox: This office has received your petition appealing the response ofthe Town of Andover (Town) to your April15, 2014 request for public records. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(2). Specifically, you requested copies of the following: 1. Phone records of Fire Chief Michael Mansfield for the period of December 17, 2013 through the date of this request regarding the investigation of a specifically identified firefighter; 2. Calls for service to A&S Towing by the Andover Police or Fire Department for the period of January 1, 2012 through the date ofthis request; 3. Invoices, bills, and/or records of payment for legal services or other expenses incurred as a result of disciplinary/legal matters involving a specifically identified firefighter for the period of January 1, 1999 through the date of this request. In a May 13, 2014letter responding to your request, Town Counsel Joshua R. Coleman stated that the Town holds no records responsive to items numbered one and two of your request. Town Counsel Coleman provided you with a fee estimate for the cost to be incurred in providing records responsive to item numbered three of your request. Item Numbered One In a July 2, 2014 telephone conversation with an attorney on my staff, Town Counsel Coleman stated that the Town's phone bills are not itemized but are received from its phone carrier in summary form. Without any detailed information regarding calls made or received to any individual telephone number, the Town holds no responsive records relating to the specifically identified firefighter. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. William D. Cox, Jr. SPR14/322 Page Two July 22, 2014 This office will rely on the Town's representation that it holds no records responsive to item number one of your request. See Konover Mgt.Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326 (1992) (the strong presumption that a public official will perform honestly and impartially and will properly discharge the duties of his office in the public interest). It is my finding that the Town does not hold a record that contains the type of information or content which you seek. Furthermore, the Town holds no obligation pursuant to the Public Records Law to create a record that includes responsive information in order to satisfy this part of your request. Item Numbered Two In his communication with this office, Attorney Coleman stated that the Town does not have a contract with A&S Towing in which services would be provided to the Town. As a result, the Town does not receive any towing services from A&S Towing and thus holds no records that would be responsive to the second part of your request. This office will again rely on the Town's representation with respect to the availability of responsive records. Item Numbered Three In response to the third part of your request, Attorney Coleman provided you with a fee estimate for the cost to be incurred in providing responsive records. In a July 2, 2014 email to an attorney on my staff, Attorney Coleman provided additional information with respect to the Town's fee estimate calculation. According to Attorney Coleman, two Town departments, the Finance department and the Accounting department, have access to records responsive to this part of your request. An assistant in the Finance department is the lowest paid person amongst those two departments who has the knowledge and is capable of providing responsive records to you. The hourly rate for that individual is $29.30 per hour, the rate provided to you in Attorney Coleman's fee estimate. It is the finding ofthis office that the Town has provided you with a reasonable fee estimate calculation. First, the Town has justified to this office the hourly rate it included within its fee estimate. Furthermore, you have requested eight years' worth of records and it is my finding that the Town has calculated a reasonable effort in which to search for and segregate records that are responsive to your request. The Town is permitted to issue a detailed fee estimate for the cost to be incurred in providing records responsive to a public records request. See 950 C.M.R. 32.06(2).

Mr. William D. Cox, Jr. SPR14/322 Page Three July 22, 2014 Conclusion I find that the Town has no records responsive to the first and second parts of your request, and has provided you with a detailed fee estimate for the cost to be incurred in providing records responsive to the third part of your request. Accordingly, this administrative appeal is now closed. Supervisor of Records cc: Mr. Reginald S. Stapczynski, Mr. Joshua Coleman, Esq.