Myers, David v. Everett, City of - Solicitor's Office (SPR 20150420)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 18, 2015 SPRlS/420 Ms. Colleen M. Mejia, Esq. City Solicitor Office of the City Solicitor City of Everett 484 Broadway Everett, MA 02149-3694 Dear Attorney Mejia: I have received the petition of David Myers appealing the March 5, 2015 response from the City of Everett (City) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Myers requested any records and any internal affairs files regarding two specifically named Department officers. On February 2, 2015, the City provided Mr. Myers with a written, good faith estimate for two hundred fifty-three dollars and seventy-six cents ($253.76) to cover search, segregation and copies of responsive records. On February 2ih, Mr. Myers requested that the City waive the $253.76 fee estimate because he is indigent, and the City denied his request to waive all the fees. It is Mr. Myers belief that your February 2, 2015 estimate pertains to his September 8, 2014 records request for records regarding an alleged informant named, "XMAS." On September 22, 2014, you informed Mr. Myers that the Department made a diligent search and no records responsive to the request were located. Therefore, the February 2, 2015 estimate pertaining to Mr. Myers' request for any records and internal affairs files of two of the Department's officers is the estimate in which the City has denied his waiver of fees. In his May 11, 2015 petition to this office, Mr. Myers requests that the Supervisor of Records order the City to waive all fees. A custodian may assess a reasonable fee for complying with a public records request. See G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a public records request is expected to exceed ten dollars ($10.00), custodian shall provide written good faith estimate). It is my understanding that you informed Mr. Myers that the $253.76 cost of providing him with the responsive records does not include any time that you would spend reviewing each document and determining which records or content of the records may be exempt from disclosure. Therefore, you state in your March 5th letter that you have waived all OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Colleen M. Mejia, Esq. SPR15/420 Page Two September 18, 2015 the fees for your review and segregation of the records, however the City is not waiving the fees for search, any segregation by the Department, copies and postage. Mr. Myers has asserted that because he is indigent that he is entitled to such a waiver of fees. Please be aware that a determination of indigency by a court of law is inapplicable to requests for records made pursuant to the Public Records Law. See G. L. c. 261, § 27A (defining indigency for civil, criminal or juvenile proceedings or appeals in any court); see also G. L. c. 261, § 27B (allowing any party to file with the clerk an affidavit of indigency and a request for a waiver, substitution or payment by the commonwealth of fees and costs upon a form prescribed by the chief justice of the supreme judicial court). The Public Records Law does not provide for an exception when the party requesting the records is indigent. See G. L. c. 66, § 10(a) (every person for whom a search of public records is made shall pay the actual expenses of such search); see also Fierro v. Hiscock, et al., Middlesex Superior Court, C.A. No. 96-7243 (1997) (indigent prisoner not entitled to receive records sought pursuant to the Public Records Law free of charge). While the Public Records Law encourages custodians to waive fees where applicable, it is not within the Supervisor of Records' enumerated powers to either require such a waiver. Accordingly, whereas the City has provided Mr. Mye with a written, good faith estimate and not required to waive the fee estimate, this ad · istrative appeal is closed. cc: Mr. David Myers