Falvey, Steve v. Revere, City of - Solicitor (SPR 20150149)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 6, 2015 SPRlS/149 Mr. Paul Capizzi, Esq. City Solicitor Revere City Hall 281 Broadway Revere, MA 02151 Dear Attorney Capizzi: I have received a petition from Steve Falvey, Regional Council Representative of the New England Carpenters appealing the response of the City of Revere (City) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Mr. Falvey requested electronic copies ofrecords where possible for the Sgt. James J. Hill School construction project. Specifically, Mr. Falvey seeks the following records: 1. Certified payroll submittals for North Atlantic Concrete, 2. Certified payroll submittals for L & L Contracting LLC, 3. Certified payroll submittals for any other contractor (excluding Maddison Associates) providing labor or framing, handing and taping/finishing interior or exterior wall systems, 4. Complete series of clerk's daily diaries/reports through December 17, 2014, 5. Complete "wage sheets" (the wage rates set by law for this specific project). The term "public records" is broadly defined to include all documentary materials or data, regardless of physical form 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). There is a presumption that all governmental records are public records. G. L. c. 66, § lO(c); 950 C.M.R. 32.08(4)10(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995), Bougas v. Chief of Police of Lexington, 371 Mass. 59, 65 (1976). In a December 23, 2014 response, Hill International, Inc. the project and construction manager for the City's project informed Mr. Falvey that his request for the daily diaries on the project is denied. It is Hill International's contention that these daily reports are internal documents. As an attorney on my staff informed you on April 14,2015, all records of public OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Paul Capizzi, Esq. SPR15/149 Page Two May 6, 2015 construction projects are public records subject to disclosure upon request. Therefore, Mr. Falvey must receive copies of these daily reports. Hill International also provided Mr. Falvey with a written estimate to cover the costs of providing copies of the requested records; however I find that the City cannot allow a project management firm or construction firm to charge the firm's hourly rates in responding to public records requests. While three (3) hours of search time which includes the time necessary to copy the records is reasonable, ninety-five ($95.00) dollars per hour to complete the tasks is unreasonable and not in compliance with the Public Records Law and its Access Regulations. 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 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 in the City's department where the records will be retained after completion of the project. 950 C.M.R. 32.06(1)(c). The City cannot allow a construction company or project management firm to charge the firms rates in responding to public records requests. The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records. Furthermore, the City has a duty to respond to public records requests directly. It cannot transfer the duty of responding to public records requests and providing good faith estimates to a private company. It is the City's duty to provide a written, good faith estimate on the City's letterhead. Accordingly, I find that the City has not met its burden under the Public Records Law and the Regulations. The City is hereby ordered to revise the written, good faith estimate by using the lowest paid hourly rate of a City employee in the department where the records will be retained after the project is completed, and provide the estimate to Mr. Falvey within ten (1 0) days. The City is also ordered to provide Mr. Falvey with all the requested records including the daily reports within ten (1 0) days. Whereas, Mr. Falvey informed this office that he provided a check for $350.00 already, therefore the City must refund Mr. Falvey for the difference in what he paid and the revised hourly rate charge.

Mr. Paul Capizzi, Esq. SPR15/149 Page Three May 6, 2015 Failure to comply with this administrative order may result in Mr. Falvey filing a complaint in Superior Court for enforcement. This appeal is closed. Supervisor of Records cc: Mr. Steve Falvey