Hill, Karen v. Townsend, Town of (SPR 20140419)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 6, 2014 SPR14/419 Mr. Andrew J. Sheehan Town Administrator Town of Townsend 227 Main Street Townsend, MA 01469 Dear Mr. Sheehan: I have received a petition from Karen Hill appealing the written, good faith estimate provided by the Town of Townsend (Town) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Hill requested electronic copies of: 1. All incoming and outgoing emails to and from Leslie Gabrilska from January 1, 2009 to July 7, 2014, and 2. All incoming and outgoing emails to and from Karen Chapman from January 1, 2012 to July 7, 2014. On July 16, 2014, you provided Ms. Hill with a written, good faith estimate totaling two thousand four hundred sixty-two dollars and ninety cents ($2,462.90). This estimate included sixteen and one half (16.5) hours at twenty-five ($25.00) dollars per hour for the Information Technology Department (IT) to search for and cull the emails from Ms. Gabrilska and Ms. Chapman's incoming and outgoing email boxes. The Town assessed segregation time (review and possibly redact emails) of sixty (60) hours of Ms. Gabrilska and Ms. Chapman's hourly rates of twenty dollars and eighty-four cents per hour ($20.84). The Town also assessed five (5) hours ofthe Town Attorney's time to segregate (review and redact) the emails at the hourly rate of one hundred sixty dollars ($160.00). Ms. Hill appealed the amount of this estimate, and this office questions why the Town believes that sixty-five (65) hours of segregation time is reasonable and necessary. Further, sixteen and one half (16.5) hours of time (two days of time) for IT to search for and cull the emails from two email boxes is unreasonable. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Andrew J. Sheehan SPR14/419 Page Two October 6, 2014 Your estimate contains no detail to explain the need for sixty-five ( 65) hours of segregation time, and why 16.5 hours is necessary for IT to cull the emails. An attorney on my staff attempted to contact you after this appeal was opened to discuss the estimate and the need for the amount of time to search and segregate the records. While that attorney left a voicemail message the call was 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). 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). Citizens should not be required to pay a premium for access to public records, since the ability to inspect the records of the government is fundamental in our democracy. All records, including electronic records should be sufficiently organized so that any search for records is not an intensive task. It is the duty of the custodian to keep the records in an organized fashion. The Regulations provide that in cases where search and segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate ofthe 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 andre-file public records, and "segregation time" as the time used to review and 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, § lO(a). Conducting a Search and Segregating Exempt Material As a suggested method of efficiently conducting a search for the emails responsive to Ms. Hill's request and to segregate any exempt materials from the emails, I advise that the email records could be placed into electronic folders by the Town's IT staff. The folders could then be reviewed by the lowest paid employee capable of determining whether the emails contain exempt material within the content of the email. Please note that the Access Regulations state that the lowest paid hourly rate of the person capable of performing the task, not the person the Town prefers, must be used to calculate search and segregation time. Clearly the task of reviewing and redacting records could be performed by a lower paid employee, such as Ms. Gabrilska and Ms. Chapman. While I understand that the Town's Attorney may be necessary to segregate any attorney-client

Mr. Andrew 1. Sheehan SPR14/419 Page Three October 6, 2014 privileged records, the Town's Attorney should only be used where absolutely necessary to segregate records. Your estimate also informed Ms. Hill that due to a large volume of emails, fulfillment of the request is expected to take several months. While I understand that a search and segregation must be conducted, a custodian of records should provide the records in a timely manner. The amount of time necessary to complete each task must be reasonable and reflect the actual time. The Town's fulfillment of a public records request that is spread out for several weeks, or several months is unreasonable. See Globe Newspaper Co. v. Commissioner of Education, 439 Mass. 124 (2003). Accordingly, I find that the fee estimate did not contain the detail that would indicate the reason for the amount oftime needed for search and segregation, and therefore the Town has not met its burden under the law. The Town is hereby ordered to revise the amount of hours for search and segregation, and provide Ms. Hill with the revised estimate within ten (10) days from, this determination. Once Ms. Hill pays the revised estimate, she must be provided with the responsive records within ten (1 0) days. In the event a request for reconsideration is honored by this office an acknowledgment will be provided to all parties, followed by a written determination by this office, to be provided within fifteen (15) business days. Requests for reconsideration filed more than thirty (30) days after the date of this letter will not be considered. Supervisor of Records cc: Ms. Karen Hill