Wraight, Marcus v. Walpole, Town of - Town Administrator (SPR 20150225)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords May 19,2015 SPRlS/225 Mr. Jim Johnson Town Administrator 13 5 School Street Walpole, MA 02081 Dear Mr. Johnson: I have received the petition of Marcus Wraight appealing the response ofthe Town of Walpole (Town) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wraight requested that the Town provide him with a spreadsheet copy of the most recent year's Town payroll records, to include the name, department, job title, and salary information for each Town employee. In a response dated February 27, 2015 you explained that the Town does not have the information in the manner that it was requested. You referred Mr. Wraight to the Town's annual report that is available on the Town's website, explaining that this report would contain most of the responsive information. The Town contends that it does not maintain records in the exact format requested by Mr. Wraight, it is unclear however, from this response whether responsive records exist within Town departments that may be responsive to this records request. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c); 950 C.M.R. 32.08(4). "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). The Town's Response Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (1 0) days of the request. G. L. c. 66, § lO(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. The initial response by the Town does not clearly address whether the Town maintains records responsive to Mr. Wraight's request for records. It is clear, however, from both your response to Mr. Wraight and your correspondence with this office that you are willing to assist Mr. Wraight in obtaining records that are responsive to his request. OneAshhurton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Jim Johnson SPR15/225 Page Two May 19,2015 The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time ofthe request. See G. L. c. 4, § 7(26) (defining "custodian" as the public employee with routine access to or control of public records). There is no obligation to create a record in response to a request for public records. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977) (custodian is not obliged to create a record in response to a request for information). The Town is, however, obligated to conduct a full and thorough search of its records, determine which records may be responsive to a records request and assist in complying with records requests. Custodians of records are required to use their superior knowledge of the contents of their files to assist in promptly complying with the request. 950 CMR 32.05(4). A copy of our publication, A Guide to the Massachusetts Public Records Law will be provided for your reference. In a conversation with an attorney on my staff you indicated that the Town Treasurer had offered to run a report that would include all the information Mr. Wraight has requested. This would indicate, although not in the exact format that he requested, that the Town does maintain records that would be responsive to Mr. Wraight' s request. Fees A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 1O (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 print out ofapublic 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 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). I find the Town has failed to use its superior knowledge to respond to a request for public records. Accordingly, the Town is hereby ordered to perform a full and thorough search of its records, and within ten (1 0) days, to provide Mr. Wraight with a detailed written response to his request for records in a manner consistent with this order, the Public Records Law and its

Mr. Jim Johnson SPR15/225 Page Three May 19,2015 Regulations. If the Town is planning to charge Mr. Wraight.for the cost of complying with his public records request, he must be provided with a detailed written, good faith estimate. This administrative appeal is now closed. Enclosure: A Guide to the Massachusetts Public Records Law cc: Mr. Marcus Wraight