Rousseau, Alan v. Gardner, City of (SPR 20140498)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 17, 2014 SPR14/498 The Honorable Mayor Mark Hawke City of Gardner 95 Pleasant Street, Room 125 Gardner, MA 01440 Dear Mayor Hawke: I have received a petition from Alan N. Rousseau appealing the lack of a formal written response to his May 28, 2014 request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Rousseau requested all plans, maps, emails, letters, etc. dealing with the vertical and horizontal expansion of the sludge landfill. Response Time and Fee Estimates A custodian has a duty to comply with a public records request as soon as is practicable, without umeasonable delay, and always within ten (10) calendar days. G. L. c. 66, § 10(a); 950 C.M.R. 32.05(2). The ten-day provision is a maximum, rather than a minimum time frame for complying with a public records request. Boston Globe Newspaper Company v. Commissioner ofEducation, 439 Mass. 124 (2003). The City has no duty to create a list of what records may be available, as Mr. Rousseau requested, however the City is required to provide Mr. Rousseau with a good faith, written estimate to conduct a search and to inform him of all the costs associated with providing copies of the records. Good faith, written estimates are required by the Public Records Law where the costs are ten ($1 0.00) dollars or more. 950 C.M.R. 32.06(2). Mr. Rousseau informed this office that in July 2014 he met with the Director of the Department of Public Works (DPW), Dane E. Arnold who provided Mr. Rousseau with records ih that the DPW had within its custody at that time. On September 19, 2014 after a September 1 telephone discussion with an attorney on my staff, you provided Mr. Rousseau with an estimate to search for, review the emails for responsiveness to the subject matter of his request, and to provide an electronic copy of the email records. However the City did not provide an estimate OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/p re

The Honorable Mayor Mark Hawke SPR14/498 Page Two October 17, 2014 for any other records that the City has and that are responsive to Mr. Rousseau's request, such as letters and memoranda. 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 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). Accordingly, I find that the City has not met its burden, and must provide Mr. Rousseau with a written, good faith estimate for any other records that have not been provided. The City is reminded that if the City withholds any responsive records, an exemption in the Public Records Law must be claimed and the reasons that the exemption is claimed must be specifically stated. The City is hereby ordered to provide Mr. Rousseau with a written, good faith estimate within ten (10) days ofthe date of this determination. 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 ore than thirty (30) days after the date of this letter will not be considered. Supervisor of Records cc: Mr. Alan N. Rousseau Mr. Dane E. Arnold