Golrick, Jeanne v. Montague, Town of - Board of Selectmen (SPR 20150376)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 10, 2015 SPRlS/376 Mr. Jeffrey Blake, Esq. Kopelman and Paige, P.C. 10 1 Arch Street Boston, MA 0211 0 Dear Attorney Blake: I have received the petition of Jeanne Golrick appealing the response of the Town of Montague (Town) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Golrick requested copies of "relevant documents" related to four categories of records. Records responsive would include "invoices, bills, statements, requests for payments, warrants, and/or any other 'disbursement' documents." In response you provided a fee estimate, along with reference to several possibly applicable exemptions to the Public Records Law. The estimate included one hour required of attorney time at a rate of $17 5. 00 per hour to review responsive records, subsequent to an initial one hour search at a rate of $24.27 per hour. The estimate does not explain why the lower hourly rate could not be used to redact the responsive records. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(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). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Town erred in claiming exemptions prior to review of the records The basis of Ms. Golrick's appeal relates to this response. The March 5, 2015 response suggests that portions of the records may be exempt based upon several specified exemptions; however, it appears that a review ofthe records has not yet been done. Your letter refers to OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Jeffrey Blake, Esq. SPR15/376 Page Two September 10, 2015 records "to the extent they exist," creating ambiguity as to whether any of the cited exemptions apply to records responsive to Ms. Golrick's request. Records custodians are advised against claiming exemptions until the records have been reviewed. To the extent this occurred it is not necessary to claim potential exemptions prior to review of the records. This issue was the subject of a prior appeal of this office. See SPR15/031 Determination of the Supervisor of Records (April 3, 20 15). In that appeal your firm represented the Town of Dedham. The Town's response, provided by your firm, was nearly identical to the response provided to Ms. Golrick, containing what appears to be boilerplate language. This language often serves to confuse the requester, as it did both with the requester in that appeal as with the present appeal. I do not see the utility in referencing any exemptions whatsoever until such time as the records have been reviewed. At that time, and with the copy of the responsive records, a custodian must provide a letter detailing, with specificity, the actual exemptions that are applicable to the responsive records. It is not necessary, and often counterproductive to do so prior to reviewing the responsive records. Town erred in providing fee estimate with lack of detail to justify legal review 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 ($1 0.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer print out 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 ofp erforming 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). There is no information in your March 5 letter that supports a finding that a $175.00 per hour attorney must review responsive documents to provide redactions. Redactions, to the extent any exist, could be performed by any Town employee sufficiently familiar with the responsive records. Further, Ms. Golrick requested the opportunity "to inspect and possibly copy all relevant documents." Your response did not address this portion of Ms. Golrick's request.

Mr. Jeffrey Blake, Esq. SPR15/376 Page Three September 10,2015 Accordingly, whereas the Town has not overcome the presumption that the requested records are public, and further, whereas the response was not made in compliance with the specificity requirements of the Public Records Law and the request itself, the Town is hereby ordered, within ten (1 0) days of this order, to provide Ms. Golrick with a revised response. This response must be prepared in compliance with the Public Records Law, its Access Regulations and this order. If, once the records have been reviewed, the Town maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Ms. Golrick a written explanation, with specificity, how a particular exemption applies to each record. Reference should be made only to exemptions applicable to the responsive records. To meet the 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 to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. 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). Once the fees are paid, you must provide the responsive records. Very truly yours, Shawn A. Williams Supervisor of Records cc: Ms. Jeanne Golrick