Bibler, Eric v. Cape and Vineyard Electric Cooperative, Inc. (SPR 20140484)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords October 17, 2014 SPR14/484 Mr. John Checklick President Cape & Vineyard Electric Cooperative 3195 Main Street P. 0. Box 427/SCH Barnstable, MA 02630 Dear Mr. Checklick: I have received the petition of Eric Bibler appealing the response of the Cape & Vineyard Electric Cooperative (CVEC) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Bibler requested copies of records related to "the employment of Ms. Karen Loura and details regarding compensation, if any, that has been paid by CVEC to Barnstable County and/or the Cape Light Compact for services provided to CVEC by Ms. Loura." Mr. Bibler has appealed CVEC's response with respect to two parts of his request. Payroll records ofp ayments to Ms. Loura In his appeal and related correspondence Mr. Bibler explains that he objects to CVEC assessing fees to search for records that the CVEC intends to obtain through the Barnstable County payroll system. As Mr. Bibler suggests, how could CVEC justify time spent to search for and retrieve records when the work will be done not by CVEC but Barnstable County. 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 ($1 0.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. John Checklick SPR14/484 Page Two October 17, 2014 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). 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 reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). Accordingly, to the extent that any fees are associated with this portion of the request, the fees must be minor if any. It is difficult to determine, however, as it appears that Mr. Bibler did not provide this office with a copy of CVEC' s original response and fee estimate. Mr. Bibler is advised that all appeals to the Supervisor of Records must be accompanied by a copy ofboth the original request and the response. Mr. Bibler's appeal is in the form of an email with items copied and pasted within the message. Mr. Bibler is advised that my office may reject future appeals that do not include a separate copy of the original request and response. See 950 C.M.R. 32.08(2). Records of compensation paid for services provided by Ms. Loura for CVEC In his request Mr. Bibler sought clarification as to whether records found in response to this portion of this request constitute a complete response with respect to all responsive records. When Mr. Bibler inquired, your response was to say "a records custodian is not required by the Public Records Law to answer questions." It is correct that under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. In this instance, however, Mr. Bibler was making a request for records. His question was an attempt to determine whether all responsive records have been provided. I find at CVEC erred in its response, and must disclose to Mr. Bibler whether all records have been provided. Accordingly, CVEC is hereby ordered, within ten (1 0) day of this order, to revise its response to Mr. Bibler in a manner consistent with this order and the Public Records Law and its Regulations. If CVEC maintains that any portion of the responsive records are exempt from disclosure it must provide to Mr. Bibler and a written explanation, with specificity, how a particular exemption applies to each record.

Mr. John Checklick SPR14/484 Page Three October 17, 2014 In the event a request for reconsideration of this order 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 co id ed. Supervisor of Records cc: Mr. Eric Bibler