Falvey, Steve v. Newburyport, City of - Public Schools (SPR 20140323)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 23, 2014 SPR14/323 Mr. Peter Lombardi Director of Policy and Administration City ofNewburyport 60 Pleasant Street Newburyport, MA 01950 Dear Mr. Lombardi: I have received the petition of Steve Falvey, the Regional Council Representative for the New England Carpenters appealing the response of the City of Newburyport (City) to his May 5, 2014 public records request. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Falvey requested electronic copies ofrecords from August 16, 2013 through the date of his request regarding the Bresnahan Elementary School Project. In response you provided a fee estimate to cover costs of providing the requested records, estimating thirty (30) hours of search time to cull the records. In his appeal Mr. Falvey states that he made a similar request for records a year ago and received a fee estimate for sixteen (16) hours of search time. 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) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). 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 (fees for public records). 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 of performing the task. 950 C.M.R. 32.06(1)(c). 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Peter Lombardi SPR14/323 Page Two July 23, 2014 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). In his appeal Mr. Falvey suggests that the sixteen (16) hours assessed for his previous request was excessive; however, Mr. Falvey did ultimately pay to obtain those records. For this request Mr. Falvey does not understand why a substantially similar request would result in nearly twice the time needed to review the records. The estimate you provided contains no detail to explain the need for thirty (30) hours to retrieve the records. An attorney on my staff attempted to contact you on June 30 and July 10, 2014 to discuss the appeal and determine the need for the added time. While that attorney left voicemail messages the calls were not returned. It is the burden of the records custodian to use its superior knowledge to respond to a request for public records. 950 C.M.R. 32.05(4 ). Whereas the fee estimate did not contain the detail that would indicate the reason for the variation from a similar past request, and further whereas to date calls placed by my staff to you have gone unanswered, I find the City has not met its burden under the law to provide the detail required in a fee estimate. The City is hereby ordered to revise the fee estimate for Mr. Falvey in a manner consistent with the Public Records Law and its Regulations within ten (1 0) days. Once Mr. Falvey pays the estimate, he must be provided with the responsiye records. Supervisor of Records cc: Mr. Steve Falvey