Hill, Karen v. Townsend, Town of - Town Administrator (SPR 20150296)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 31, 2015 SPRlS/296 Mr. Andrew J. Sheehan Town Administrator Town of Townsend 227 Main Street Townsend, MA 01469 Dear Mr. Sheehan: I have received the petition of Karen Hill appealing the response of the Office of the Board of Selectmen (Board) of the Town of Townsend (Town) to her requests for public records. G. L. c. 66 § 1O (b ); 950 C.M.R. 32.08(2). Specifically, Ms. Hill requested copies of emails for the Town's Conservation Agent and for both the Town's Conservation Commission (Commission) Chairman and its Land-Use Coordinator from January 1, 2011 to the present. Upon receiving a fee estimate in response to this request Ms. Hill appealed to this office. In particular, Ms. Hill objects to the hourly rate of the persons reviewing responsive records, believing an employee from another department, paid a lower hourly rate could perform the task of records review. Ms. Hill also objects to the lack of a timeline in the Board's response to her request. It appears that Ms. Hill has requested these records on numerous occasions, as recently as May 21, 2015. The Board issued at least two fee estimates in response to these requests. The estimate dated April1, 2015 was prepared in response to a March 24, 2015 request by Ms. Hill that was not provided to this office by Ms. Hill. The April 1 response by the Board is the subject of this appeal. Ms. Hill did not provide a copy of the March 24 request with her petition for appeal. Ms. Hill is advised that to avoid delays a requester must submit a copy of a request for public records along with a petition for appeal. 950 C.M.R. 32.08(2). Whereas several other similar requests, dated April 8 and May 21, 2015 were provided, I will commence review. Fees Ms. Hill objected to the hourly rate proposed by the Board for the subjects of the responsive records to review those records once recovered by the Town's Information Technology vendor. Ms. Hill concedes that, while "these employees are the only ones in their respective departments, they are not the lowest paid employee capable of performing the task. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 . www.sec.state.ma.us/pre

Mr. Andrew J. Sheehan SPR15/296 Page Two July31,2015 There is an employee at the water department who is paid $16.00+, who also is currently serving as a Town Selectman." A review of the statutory and regulatory provisions regarding fees for public records is therefore in order. A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 1 O(a); 950 C.M.R. 32.06(2). 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). 950 C.M.R. 32.06. The Regulations define "search time" as the time needed to locate, pull from the file, copy and re-file public records, and "segregation time" as the time used to review and 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, § 1O (a). Ms. Hill has suggested that such review be conducted by a clerk in the Town's Water Department. The Regulations provide that in cases where search and 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 in the department where the records are normally retained. 950 C.M.R. 32.06(1)(c). The requested records are records ofthe Conservation Department, not the Water Department. You explained to a member of my legal staff that the Commission staff consists of two employees, namely the persons who are subject of the responsive records. You further explained that these two employees have the superior knowledge of the subject-matter ofthe records ofthe Commission and are therefore the only persons capable of reviewing the responsive records. Upon review, I find the Board's fee estimate with respect to the persons capable to perform the task of review is appropriate and in compliance with the Regulations. Timeline for providing responsive records The Board provided a fee estimate indicating the number of hours required to search for and segregate the responsive records. The Board is permitted to obtain payment for provision of responsive records prior to commencing work to retrieve those records. Once an estimated fee is paid, the records must be provided within a reasonable time. Globe Newspaper Co. v. Commissioner of Education, 439 Mass. 124 (2003). Accordingly, I find the Board's response with respect to time lines of provision of records to be reasonable. Conclusion I find the Board has provided Ms. Hill with a fee estimate that was prepared in compliance with the Regulations. Once the estimated fees are paid by Ms. Hill the Board must provide the responsive records within a reasonable time. If the Board maintains that any portion of the responsive records is exempt from disclosure it must provide Ms. Hill a written explanation, with specificity, how a particular exemption applies to each record. To meet the

Mr. Andrew J. Sheehan SPR15/296 Page Three July31,2015 specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. A copy of any such response must be provided to this office. It is preferable send an electronic copy of this response to this office at pre@sec.state.ma.us. Supervisor of Records cc: Ms. Karen Hill