Bibler, Eric v. Cape Light Compact (SPR 20140461)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 10, 2014 SPR14/461 Ms. Margaret T. Downey Compact Administrator Cape Light Compact P.O. Box 427 Barnstable Superior Courthouse Barnstable, MA 02630 Dear Ms. Downey: I have received the petition of Eric Bibler appealing the response of the Cape Light Compact (Compact) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Subsequent to the intervention ofthis office you responded in a letter dated August 28, 2014. Confusion as to whether email communication was a request for public records In an email dated August 5, 2014 to Compact Chairman Dr. Joyce Flynn and Treasurer Peter Cocolis Mr. Bibler discussed what he found to be the failure of the Compact to publish on its website "Current Information for [Compact] Fund Financial Statements," and "Audited Statements for Periods Since 2011." From my review of this email it does not appear that this is a request for public records. It is, however, a request that records be "published on the Cape Light Compact website to provide full public disclosure of [Compact's] finances through the end ofthe most recent FY2014." It also appears from review that this is the same perception initially held by you and the Compact. In your August 28, 2014 response you explained that "the Compact originally understood [Mr. Bibler's] August 5, 2014 communication to be a request for website posting." I find this explanation cures any delay in response by the Compact. This office has often recommended to a requester that a request for public records be brief, clear, and limited to the request. The delays in responding to the request contained in Mr. Bibler's August 5, 2014 email appear to be solely related to the length of the email and the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Margaret T. Downey SPR14/461 Page Two October 10, 2014 unclear nature of the request. I strongly suggest to Mr. Bibler that future requests omit any extraneous information that could lead to additional delays. Native format ofp ublic records In your response you indicted that the Compact possessed records responsive to Mr. Bibler's Request # 1, and possesses no records responsive to Mr. Bibler's Request # 2. In the response you provide a fee estimate for provision of the records responsive to Request # 1, including the cost for copies of 30 pages of computer printout records. In his request, Mr. Bibler sought copies of records in electronic form. "Public records" is broadly defined to include all documentary materials or data, regardless ofphysicalform or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Native format was defined by Principle 12 of The Sedona Principles as "the form or forms in which the information is ordinarily maintained or in a reasonably usable form." See The Reality of Native Format Production and Redaction, An EDRM White Paper, by Christine Musil, Director of Marketing, Informative Graphics Corporation (August 26, 2010), as accessed from www.edrm.net/resources/edrm-white-paper-series/the-reality-of-native-format (accessed October 8, 2014). Accordingly, to the extent possible and practicable records must be provided in native format if so requested. Fees for native format records 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 ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer printout of a public record. See 950 C.M.R. 32.06(1 )(a). As the fees are associated with paper copies, there is no portion of the Regulations that permits a charge to be assessed for copies of electronic records transmitted electronically. In addition to the copying fee, 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 material. 950 C.M.R. 32.03. The search and segregation fees must

Ms. Margaret T. Downey SPR14/461 Page Three October 10, 2014 reflect the actual cost of complying with a particular request. G. L. c. 66, § 1O (a). This means that, while a custodian may be providing electronic copies, there might be fees associated with the search and segregation of those electronic records. Accordingly, I find the fee estimate to be reasonable with respect to the time to search for and redact responsive records; however, the Compact erred in not responding to Mr. Bibler's request that records be provided in native form. Availability of records on Compact's website In his appeal Mr. Bibler sought assistance with his request that the Compact provide records on its website in a timely manner. Absent a statutory or regulatory requirement, such posting of records is not mandatory by governmental records custodians. Generally, records posted on a website are provided as a convenience to the public. It is important that such records be posted in a consistent manner, but I have no authority under the Public Records Law to mandate posting of records on a website. Conclusions A requester may seek copies of public records in native format. Further, a custodian may assess a fee for the search and segregation of those records, but not for copies of records that are provided in native format. Accordingly, I will consider this administrative appeal closed with the proviso that upon payment of a fee for the search and segregation of records, as well as for copies that are not available in electronic form, all remaining records be provided to Mr. Bibler, in a manner consistent with this order and the Public Records Law. In the event a request for reconsideration of the findings in this appeal 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: Mr. Eric Bibler