Driscoll, Sean v. Truro, Town of (SPR 20150409)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 17, 2015 SPRlS/409 Ms. Cynthia Slade Town Clerk Town of Truro 24 Town Hall Road Truro, MA 02666 Dear Ms. Slade: I have received the petition of Sean F. Driscoll of the Cape Cod Times appealing the response of the Town of Truro (Town) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Driscoll requested "[a] copy of the current dog registration or dog license database, including all information collected by the town from applicants." Mr. Driscoll also requested a waiver of fees. Mr. Driscoll requested that the responsive records be provided in electronic format. In a response dated May 12, 2015 the Town informed Mr. Driscoll that the Town charges a flat fee of twenty-five dollars ($25.00) for the provision of electronic records. The Town offered to provide paper copies at twenty cents ($.20.00) per page plus postage. In its response the Town also explained that it would be able to release all the responsive information except phone numbers. The Town provided no basis under the Public Records Law for the withholding of the phone numbers. In this response the Town failed to notify Mr. Driscoll of his administrative remedies. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the Town did not contain the specificity required in a denial of access to public records. To comply with the Public Records Law and its Regulations a records custodian must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. Further, the Town failed to inform Mr. Driscoll of his administrative remedies under the Public Records Law. The Public Records Access Regulations state that a custodian of records must notify a requester of his administrative remedies in the event the custodian denies access to requested records. 950 C.M.R. 32.08(1). The Town failed to inform Mr. Driscoll ofthis right. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Cynthia Slade SPR15/409 Page Two July 17, 2015 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 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 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 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, § 1O (a). The Public Records Law does not permit a custodian to charge flat fee for the provision of records in electronic format. For copies of public records not susceptible to ordinary means of reproduction, the actual cost incurred in providing a copy may be assessed. 950 C.M.R. 32.06(1)(£). I find the Town's fee estimate lacks the specificity required by the Public Records Law and Regulations. Accordingly, the Town is must revise this estimate. Phone numbers Please be advised that the Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10 (c ) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the Town did not contain the specificity required in a denial of access to public records. Accordingly, Town is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. In its denial of access to telephone numbers the Town provided no basis under the Law. Accordingly, whereas the Town has not overcome the presumption that the redacted portion of the responsive records are public, the Town is hereby ordered, within ten (1 0) days of this order, to provide Mr. Driscoll with the redacted portion of the records, prepared in a manner consistent with this order, the Public Records Law and its Access Regulations. If the Town maintains that

Ms. Cynthia Slade SPR15/409 Page Three July 17,2015 any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Driscoll a written explanation, with specificity, how a particular exemption applies to each record. 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 o fice at pre@sec.state.ma.us. ly yours, t I,l I . Williams Supervisor ofRecords cc: Mr. Sean F. Driscoll