Moschella, Esq., William v. Newburyport, City of - Mayor's Office (SPR 20150453)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 27,2015 SPRlS/453 Mayor Donna D. Holaday City ofNewburyport 60 Pleasant Street Newburyport, MA 01950 Dear Mayor Holaday: I have received the petition of Mr. William A. Moschella, Esq. appealing the non response of the City ofNewburyport (City) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Moschella requested copies of records related to the Henry Graf Jr. Memorial Skating Rink, 28 Lowell Street, in Newburyport. Attorney Moschella also requested all fees be waived. The basis of Attorney Moschella's appeal is that as of the date he submitted his petition to my office he had not received a response to his request from the City. 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). Public records, and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a) (2008 ed.); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are not blanket in nature). Lack of 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, § 10(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. As of the date of this order this office is unaware of any response provided by the Department. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mayor Donna D. Holaday SPR15/453 Page Two July 27, 2015 Fees A records custodian may charge a reasonable fee to recover the costs of complying with a public records request. A records custodian is encouraged, but not required, to waive fees where disclosure is in the public interest. Please be advised that the Supervisor does not have the authority to order a waiver of fees. Records custodians assessing a fee must do so in accordance with any applicable statutory provisions, the Regulations or an enabling provision. 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 printout 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, § lO(a). I find the City has failed to respond to a request for public records. Accordingly, the City is hereby ordered, within ten (10) days ofthis order, to provide Attorney Moschella with the requested records. If the City maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Attorney Moschella 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 office at pre@sec.state.ma.us.

Mayor Donna D. Holaday SPR15/453 Page Three July 27, 2015 If there are any fees associated with this response a written, good faith estimate must be provided. 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). Once the fees are paid, you must provide the responsive records. cc: Mr. William A. Moschella, Sr., Esq.